Atkinson v Killarney Properties Pty Ltd and Ors (No.2) - [2017] FCCA 1155

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATKINSON v KILLARNEY PROPERTIES PTY LTD & ORS (No.2)

[2017] FCCA 1155

Catchwords:
INDUSTRIAL LAW – General protections application filed out of time – various applications for extension of time dismissed – orders for submissions on costs.

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)
Federal Circuit Court Rules 2001 (Cth), r.3.05

Cases cited:

Atkinson v Killarney Properties Pty Ltd & Ors [2016] FCCA 3233 Construction, Forestry, Mining & Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245
Hawkins v Kingsway Group Limited [2009] FCA 1073
Sims v RM Capital Pty Ltd (No 2) [2015] FCCA 149
SZTES v Minister for Immigration & Border Protection [2015] FCA 719 SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 1155
Decision Date: 30 May 2017

CaseChat Overview and Summary

In *Atkinson v Killarney Properties Pty Ltd and Ors (No.2)*, heard in the Federal Court of Australia before Judge Antoni Lucev, the applicant, Mr. Atkinson, sought to vary and extend the time granted for filing costs submissions. This application arose in the context of earlier proceedings where Mr. Atkinson's general protections application had been dismissed, and various applications for an extension of time to file that application had also been dismissed. The court had previously made orders for submissions on costs.

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.

Orders