Croker v TAFE Commission - [2009] FCA 1024

FEDERAL COURT OF AUSTRALIA
Croker v TAFE Commission [2009] FCA 1024
PRACTICE & PROCEDURE - application for an extension of time pursuant to s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) – whether there is any explanation for delay – whether there is any prejudice to the respondent if extension is granted – whether the applicant has an arguable case – the applicant did not provide an adequate explanation for the entire period of delay nor does the applicant have an arguable case – application for extension of time refused.
Disability Discrimination Act 1992 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PH(1)(c), 46PH(2), 46PO(1) and 46PO(2)
Federal Court Rules O 11 r 16, O 26 r 5(1), O 46 r 7A and O 81 r 5
Bahonko v Nurses Board of Victoria (No 4) (2007) 97 ALD 721 applied
CLAYTON ROBERT CROKER v TAFE COMMISSION
NSD 495 of 2009
EDMONDS J
14 SEPTEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 495 of 2009

BETWEEN:
CLAYTON ROBERT CROKER
Applicant

AND:
TAFE COMMISSION
Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

14 SEPTEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time in which to file his originating application be refused.
2.The applicant pay the respondent’s costs including those of opposing the applicant’s application for an extension of time.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 495 of 2009

BETWEEN:
CLAYTON ROBERT CROKER
Applicant

AND:
TAFE COMMISSION
Respondent

JUDGE:

EDMONDS J

DATE:

14 SEPTEMBER 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

In or about December 2008 a delegate of the President of the then Human Rights and Equal Opportunity Commission (‘HREOC’) terminated a complaint by the applicant, alleging discrimination under the Disability Discrimination Act 1992 (Cth), under s 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’) on the ground that she was satisfied that the complaint was lacking in substance. Notice of that termination, dated 11 December 2008, and of the reasons for that decision were, in accordance with s 46PH(2) of the HREOC Act, issued by the delegate.
On 5 January 2009 the applicant filed an application in this Court under s 46PO(1) of the HREOC Act alleging unlawful discrimination. The respondent to the application was named as State of New South Wales, Department of Education and Training (‘the State’).
By notice of motion filed on 20 February 2009 the State moved for summary dismissal of the proceeding and on 20 March 2009 Emmett J dismissed the proceeding: Croker v Department of Education and Training (NSW) [2009] FCA 350. In the course of his reasons, his Honour said:
[5] The first basis upon…

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 Croker v TAFE Commission

Details

AGLC: Croker v TAFE Commission [2009] FCA 1024
Case: [2009] FCA 1024
Decision Date: 14 SEPTEMBER 2009

CaseChat Overview and Summary

The applicant, Croker, sought an extension of time to file his originating application against the TAFE Commission in a matter concerning employment disputes. The court was required to determine whether the applicant's reasons for the delay were sufficient to warrant an extension of the time limit and if the extension would be in the interests of justice. The legal issues before the court involved the principles of equity, fairness, and the proper administration of justice, particularly the discretionary power of the court to extend time in exceptional circumstances.

The court considered the applicant’s reasons for the delay, the prejudice caused to the respondent, and the overall fairness of granting the extension. It held that the applicant’s reasons were not sufficient to warrant an extension as they did not demonstrate any exceptional circumstances or mitigating factors. Furthermore, the court found that granting the extension would not be in the interests of justice, as it would cause significant prejudice to the respondent and potentially disrupt the orderly process of the court. Consequently, the court exercised its discretion to refuse the applicant’s application for an extension of time.

In light of the decision, the court ordered that the applicant’s application for an extension of time be refused. Additionally, the court directed that the applicant pay the respondent's costs, including those associated with opposing the application for an extension of time. This decision underscores the importance of timely filing of legal documents and the court’s reluctance to extend time unless there are compelling reasons to do so.

Orders

Orders of the court

1. The applicant’s application for an extension of time in which to file his originating application be refused.

2. The applicant pay the respondent’s costs including those of opposing the applicant’s application for an extension of time.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EDMONDS J

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Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 495 of 2009

BETWEEN:	CLAYTON ROBERT CROKER Applicant
AND:	TAFE COMMISSION Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	14 SEPTEMBER 2009
WHERE MADE:	SYDNEY

JUDGE:	EDMONDS J
DATE:	14 SEPTEMBER 2009
PLACE:	SYDNEY