FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATKINSON v KILLARNEY PROPERTIES PTY LTD & ORS (No.2) | [2017] FCCA 1155 |
| Catchwords: PRACTICE AND PROCEDURE – Application for order varying and extending time in an earlier order for filing costs submissions – disparity in earlier order in time granted to file costs submissions – consideration of factors for extending time. |
| Legislation: Fair Work Act 2009 (Cth), s.570(2) |
| Applicant: | GARTH PEERS ATKINSON |
| First Respondent: | KILLARNEY PROPERTIES PTY LTD |
| Second Respondent: Third Respondent: Fourth Respondent: | ADRIAN SHANE PALM STEVEN MICHAEL PALM GUISEPENNA MENNA |
| File Number: | PEG 344 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 30 May 2017 |
| Date of Last Submission: | 30 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 30 May 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr D Messina |
| Solicitors for the Respondents: | Rowe Bristol Lawyers |
ORDERS
That the date specified in order 3 of the court orders made on 3 March 2017 be changed from 28 May 2017 to 27 June 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 344 of 2015
| GARTH PEERS ATKINSON |
Applicant
And
| KILLARNEY PROPERTIES PTY LTD |
First Respondent
| ADRIAN SHANE PALM |
Second Respondent
STEVEN MICHAEL PALM
Third Respondent
GUISEPENNA MENNA
Fourth Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore and revised)
This is the applicant’s application in a case to vary orders made on 3 March 2017 by extending the time in which to file and serve submissions on costs.
The application in a case arises against the background of a judgment of the Court on 14 December 2016 dismissing an application for extension of time by the applicant which had the effect of disposing of his substantive application and other applications, save as to costs. In Atkinson v Killarney Properties Pty Ltd & Ors [2016] FCCA 3233 at [45]-[46] per Judge Lucev the Court said as follows:
45. The Court has concluded that the Court Order Extension Application ought to be dismissed. It follows that it is unnecessary to make further orders dismissing the Mandatory Extension Application (or the Second Mandatory Extension Application), the Respondent’s Dismissal Application or the Substantive Application: BZABK v Minister for Immigration and Citizenship [2012] FCA 774 [2012] 205 FCR 83 at 43 per Foster J.
46. In relation to costs and bearing in mind the provisions of s.570 (2) of the FW [Fair Work] Act which makes costs in FW…
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- Case
- [2017] FCCA 1155
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether to grant an extension of time for Mr. Atkinson to file his costs submissions, notwithstanding the disparity in the time previously allocated to the parties for this purpose. The court was required to consider the relevant factors for granting an extension of time in such circumstances, particularly where the original timeframes had already expired.
Judge Lucev considered the principles governing extensions of time, noting that such applications are generally a matter of discretion. The court weighed the applicant's reasons for the delay against any prejudice to the respondents. In this instance, the court found that the applicant had not provided sufficient justification for the delay in filing his costs submissions, and that granting a further extension would unduly prejudice the respondents. Consequently, the court dismissed the application for an order varying and extending time.
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Decision
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