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Atkinson v Killarney Properties Pty Ltd & Ors

Atkinson v Killarney Properties Pty Ltd & Ors

Case [2016] FCCA 3233 14 December 2016

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FEDERAL CIRCUIT COURT OF AUSTRALIA

ATKINSON v KILLARNEY PROPERTIES PTY LTD & ORS

[2016] FCCA 3233

Catchwords:
INDUSTRIAL LAW – General protections application filed out of time – respondents’ application in a case for dismissal – application in a case for extension of time filed out of time ordered by the Court – application for time to extend time ordered by the Court to file extension of time application – further application in a case after judgment reserved to file and serve further material.

PRACTICE AND PROCEDURE – General protections application filed out of time – respondents’ application in a case for dismissal – application in a case for extension of time filed out of time ordered by the Court – application for time to extend time ordered by the Court to file extension of time application – principles for extension of time to comply with Court order – further application in a case after judgment reserved to file and serve further material – principles concerning re-opening a case.

Legislation:

Fair Work Act 2009 (Cth), ss.361, 368, 370, 570

Federal Circuit Court Rules (Cth), rr.1.03, 3.05, 21.02
Federal Circuit Court of Australia Act 1999 (Cth), s.3

Cases cited:

Ample Source International Limited (BVICN 1575638)v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587
Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385; (1993) 25 IPR 33
Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962
BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185
Lejmanoski v The University of Western Australia (No. 3) [2016] FCCA 154

Sims v RM Capital Pty Ltd & Anor (No. 2) [2015] FCCA 149

SZNOR v Minister for Immigration & Anor [2009] FMCA 639
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 201 IR 327; (2011) 246 FLR 430
WZANW v Minister for Immigration & Anor [2009] FMCA 1075

Applicant:

GARTH PEERS ATKINSON

First Respondent:

KILLARNEY PROPERTIES PTY LTD

Second Respondent:

ADRIAN SHANE PALM

Third Respondent:

STEVEN MICHAEL PALM

Fourth Respondent:

GUISEPENNA MENNA

File Number:

PEG 344 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

10 June and 18 October 2016

Date of Last Submission:

23 November 2016

Delivered at:

Perth

Delivered on:

14 December 2016

REPRESENTATION

For the Applicant:

Mr N Marouchak (on 10 June 2016);
the applicant…

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.

Continue reading Atkinson v Killarney Properties Pty Ltd & Ors

Details

AGLC: Atkinson v Killarney Properties Pty Ltd & Ors [2016] FCCA 3233
Case: [2016] FCCA 3233
Decision Date: 14 December 2016

CaseChat Overview and Summary

The applicant, Atkinson, brought a general protections application against Killarney Properties Pty Ltd and other respondents. The respondents sought dismissal of the application on the grounds that it was filed out of time. The Court was required to consider an application for an extension of time to file the general protections application, which itself was filed out of time. Further, the Court had to consider an application for an extension of time to file the application for an extension of time, and a subsequent application to file and serve further material after judgment had been reserved.

The central legal issues before the Court were the principles governing extensions of time to comply with court orders, particularly in the context of filing applications out of time. The Court also had to determine the principles applicable to re-opening a case after judgment has been reserved, and whether to permit the filing of further material in such circumstances.

In determining the applications, the Court applied established principles for granting extensions of time, which generally involve considering the applicant's explanation for the delay, the merits of the underlying claim, and any prejudice to the respondents. The Court also considered the principles for re-opening a case, which typically require a high threshold to be met, demonstrating that the new material is significant and could likely affect the outcome of the case, and that it could not have been discovered with reasonable diligence prior to judgment. The Court's reasoning would have involved weighing these factors in light of the specific facts presented.

Orders