Case: Jennings v Salvation Army [2003] FCA 1193 (2003) 128 IR 366
Outcome: followed
The principles upon which an application for enlargement of time in a case such as this should be determined have been the subject of comment in a number of cases. They are most conveniently set out for present purposes in the judgment of Marshall J in Jennings v Salvation Army [2003] FCA 1193 (2003) 128 IR 366 at [9] , where his Honour quoted from the judgment of a Full Court of the Industrial Relations Court of Australia in Roger Coyne v Ansett Transport Industries (unreported, Industrial Relations Court of Australia, Wilcox CJ, Ryan and Madgwick JJ, 24 September 1996). The principles so quoted are as follows: '1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.' 15 The second principle quoted by Marshall J in Jennings relates to action taken otherwise than in the Court to contest the termination. There is no material before me suggesting that the applicant has in any way done anything that would have kept the respondent informed of the proposition that he regarded the issue of his termination of employment as still a live one. 16 The next two principles involve the issue of prejudice to the respondent. The respondent attempted to make a case of prejudice arising from the delay. According to its affidavit material, both the principal of Lilydale High School at the time, and the officer who signed the letter of dismissal, are no longer employed by the Department of Education and Training. The affidavit does not say that it is impossible to obtain information from those persons for the purpose of instructing counsel and solicitors in the case. Nor does the affidavit material indicate that those persons will be unavailable to give evidence, or will have no recollection of the circumstances of the dismissal. The affidavit material also says that the respondent discontinued the earlier proceeding in this Court, remitted from the High Court, on the basis that the applicant had not taken any steps to pursue his claim since filing his notice of election on 6 February 2004. The reason for discontinuing the proceeding was that the respondent considered the expenditure associated with prosecuting the proceeding to be unjustified. Counsel for the respondent conceded today that any point that might have been raised in that case, as to want of jurisdiction in the Commission, could be raised in the present proceeding, as to want of jurisdiction in the Court. There appears to me to be no reason why the same point could not be agitated in this proceeding. Given the application of s 347 of the Workplace Relations Act , which would prevent the successful party from claiming costs of a proceeding in most circumstances, it is difficult for me to see how the discontinuance of that earlier proceeding, in reliance on the applicant's failure to institute the proceeding he has now instituted, could be said to amount to prejudice. I therefore proceed on the basis that the respondent has suffered no prejudice, but taking into account the fourth principle from Jennings , which is that the mere absence of prejudice is an insufficient basis to grant an extension of time. 17 The fifth principle relates to the merits of the proceeding. The applicant made it very clear that he is particularly interested in attempting to demolish the validity of the ground that was given as the reason for his termination. That ground, of course, was the making of a false statutory declaration as to prior convictions. I drew to his attention that, even if he were able to establish that that ground was entirely false, that would not itself bring him success in the proceeding. His proceeding in this Court is necessarily confined to the particular grounds that he has raised. Under s 170CK of the Workplace Relations Act , the applicant claims that he was dismissed for reasons that included those found in subs (2)(f) of that section, particularly political opinion, national extraction or social origin. In substance, the applicant claims that he was discriminated against and dismissed in consequence of the fact that he holds his position in the Jewish Defence League, and the fact that he is the illegitimate son of Adolf Hitler, thereby giving rise respectively to the grounds of political opinion on the one hand and national extraction or social origin on the other. 18 There is no doubt that, at the time leading up to the dismissal, there was considerable publicity about the applicant's involvement with the Jewish Defence League and his claims as to his biological origins. The matter was, as the applicant put it, leaked to the Herald Sun newspaper by a fellow teacher, after one of the students at the school had discovered evidence of it whilst researching for a school project on the internet. The Herald Sun sensationalised the issues by suggesting that the applicant was a terrorist, or someone associated with terrorists, working in the school system in Victoria. The matter was also taken up on a radio station, 3AW, by one of its hosts, Neil Mitchell, who apparently interviewed the Minister for Education and Training, Ms Lynne Kosky, and, as the applicant put it, 'seriously embarrassed' her. 22 The sixth of the principles that were considered in Jennings does not appear to be applicable in the present case. 23 It therefore appears to me that I have to decide whether to grant the applicant the extension of time he seeks by balancing, on the one hand, the very long and not very satisfactorily explained delay before commencement of proceedings and, on the other hand, the prospect of success that might arise from the fact that the respondent would carry the onus of proof on the grounds under s 170CK of the Workplace Relations Act . The balance is therefore between the serious lapse of time and the possibility of success, arising from the fact that the respondent has the onus of proof on the crucial issues, and there is some slight evidence that at least the circumstances that the applicant claims were the reasons for his dismissal might have been present in the mind of the decision-maker. It is a difficult balance to make, because it is a balance between two different things. What tips it seems to me to be the relatively inconsequential nature of any relief that the applicant could claim if he were successful. As I have said, in any event, a relatively small amount of money would seem to be all that he could claim successfully, and even that might be subject to questions of duties to mitigate loss and damage, and so forth. 24 As the first of the principles which are quoted in Jennings says, the prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend it. Having regard to the proposition found in the judgment of McHugh J to which I referred earlier, it seems unlikely, in the circumstances of a case such as the present, that it would ever be regarded as equitable to extend a time limit to the extent required in the present case. 25 For those reasons, I refuse to grant to the applicant the extension of time that he seeks. It follows that it will be necessary for me to dismiss his application. 26 The orders that I make are: 1. The application for an extension of time in which to commence the proceeding be dismissed. 2. The application filed on 6 December 2005 be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 19 April 2006 Counsel for the applicant: The applicant appeared in person Counsel for the respondent: C O'Grady Solicitor for the respondent: Maddocks Date of Hearing: 20 March 2006 Date of Judgment: 20 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/420.html