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Drew v Bates

Drew v Bates

Case [2005] FMCA 1221 17 August 2005

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Civil Litigation & Procedure

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

DREW v BATES & ANOR

[2005] FMCA 1221

PRACTICE & PROCEDURE – Human rights – extending time for application.

Human Rights and Equal Opportunity Commission Act1986
Sex Discrimination Act 1984 (Cth)

Beling v Stapels [2001] FMCA 135
Leslie v Graham (2002) FCA 32
Phillips v Australian Girls Choir [2001] FMCA 109

Applicant:

SUSAN GAY DREW

Respondents:

ANTHONY BATES & ANOR

File Number:

MLG 921 of 2005

Judgment of:

Phipps FM

Hearing date:

17 August 2005

Date of Last Submission:

N/A

Delivered at:

Melbourne

Delivered on:

17 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr O'Bryan

Solicitors for the Applicant:

Galbally & O’Bryan

Counsel for the Respondents:

Mr Harrington

Solicitors for the Respondent:

Kempsons Lawyers

ORDERS

The applicant be allowed pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act1986 further time to make an application against the respondents pursuant to the Sex Discrimination Act until 29 July 2001.
The applicant file and serve points of claim including particulars of any loss and damage she claims by 4.00pm on 7 September 2005.
The respondents file and serve points of defence by 4.00pm on 21 September 2005.
The Court declares that it is in the interests of justice that there be discovery.
Each party file and serve a list of discoverable documents by 4.00pm on 5 October 2005.
The proceedings be the subject of mediation by a person agreed within 14 days and if not agreed, by a Registrar of the Court, to be completed by 21 October 2005.
The applicant file and serve any affidavits upon which she relies by 4.00pm on 4 November 2005.
The respondents file and serve any affidavits upon which they rely by 4.00pm on 16 November 2005.
The application be fixed for hearing on 24 November 2005.
Reserve costs.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for each party to employ an advocate.
That the parties be granted liberty to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 921 of 2005

SUSAN GAY DREW

Applicant

And

ANTHONY BATES & ANOR

Respondents

REASONS FOR JUDGMENT

This is an application for an extension of time pursuant to s.46PO(2) of the Human Rights and Equal Opportunity Commission Act1986. That section provides:
The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2) or within such further time as the court concerned allows.
The applicant made a complaint to the Human Rights and Equal Opportunity Commission on 8 March 2005 in which she alleged sexual harassment in the course of her employment. The affidavit filed by the applicant exhibits the documents constituting the complaint she made to the Commission and the Commission's Notice of Termination.
The Notice of Termination pursuant to sub-s.46PH(2) of the HREOC Act was issued by the Commission on 21 June 2005. The 28 day time limit for an application to the Court expired…

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 Drew v Bates

Details

AGLC: Drew v Bates [2005] FMCA 1221
Case: [2005] FMCA 1221
Decision Date: 17 August 2005

CaseChat Overview and Summary

Drew was the applicant in this matter, and Bates were the respondents. The dispute was based on claims of sex discrimination, brought under the Sex Discrimination Act 1984 (Cth). The case was heard in the Federal Court of Australia. The applicant sought an extension of time to make her application, as well as other procedural orders to facilitate the hearing of the matter.

The primary legal issues before the court were whether the applicant should be granted an extension of time to make her application and whether the other procedural orders sought were appropriate. The court had to consider the application in light of the statutory provisions and relevant case law concerning extensions of time and procedural fairness.

The court found that it was in the interests of justice to grant the applicant an extension of time to make her application, as well as the other procedural orders sought. The court noted that the applicant had acted promptly and had a strong case, and that the respondents had not demonstrated any prejudice as a result of the delay. The court also found that discovery and mediation were appropriate steps to facilitate the fair and efficient resolution of the dispute. The court made the orders as set out above, reserving costs pending the outcome of the hearing.

In summary, the court granted the applicant an extension of time to make her application and made various procedural orders to facilitate the hearing of the matter. The court found that these orders were appropriate in the circumstances, and that it was in the interests of justice to grant them. The matter is now scheduled for hearing on 24 November 2005.

Orders

Orders of the court

The applicant be allowed pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 further time to make an application against the respondents pursuant to the Sex Discrimination Act until 29 July 2001.

The applicant file and serve points of claim including particulars of any loss and damage she claims by 4.00pm on 7 September 2005.

The respondents file and serve points of defence by 4.00pm on 21 September 2005.

The Court declares that it is in the interests of justice that there be discovery.

Each party file and serve a list of discoverable documents by 4.00pm on 5 October 2005.

The proceedings be the subject of mediation by a person agreed within 14 days and if not agreed, by a Registrar of the Court, to be completed by 21 October 2005.

The applicant file and serve any affidavits upon which she relies by 4.00pm on 4 November 2005.

The respondents file and serve any affidavits upon which they rely by 4.00pm on 16 November 2005.

The application be fixed for hearing on 24 November 2005.

10.

Reserve costs.

11.

Pursuant to Rule 21.15 of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Drew v Bates [2005] FMCA 1221

Most Recent Citation

Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541

Cases citing this decision · 9 of 9 shown

Fitt and K & S Freighters Pty Limited (Compensation)
[2019] AATA 4374 Para 11

…s an arguable case.[1] [1] Collier J, Ferrus v Qantas Airways Limited [2006] FCA 812, at paragraph 20, citing with approval Phipps FM in Drew v Bates [2005] FMCA 1221.…
Casey v Rebel Sport Ltd
[2017] FCCA 1470 Para 9

…cox J and Phillips v Australian Girls Choir [2001] FMCA 109 per McInnis FM (“ Phillips ”)), and further summarised in Drew v Bates & Anor [2005] FMCA 1221 (“ Drew v Bates ”) per Phipps FM.…
Howells v Owners Corporation Strata Plan 33149
[2015] FCCA 1920 Para 2

…an Girls’ Choir with approval and her Honour also agreed with Phipps FM’s distillation of those seven principles (in Drew v Bates [2005] FMCA 1221) into three matters, namely: a. explanation for delay; b. any prejudice to the respondent; and c. whether the applicant has an arguable case.”…
Amponsem v Laundy (Exhibition) Pty Ltd
[2013] FCCA 1982 Para 2

…an Girls’ Choir with approval and her Honour also agreed with Phipps FM’s distillation of those seven principles (in Drew v Bates [2005] FMCA 1221) into three matters, namely: a) explanation for delay; b) any prejudice to the respondent; and c) whether the applicant has an arguable case.…
Culpin v Scandinavian Tobacco Group Australia Pty Ltd
[2013] FCCA 1666 Para 2

…observe [20]: [3] [2006] FCA 812 [4] Ibid at [19] “The seven principles were summarised – in my view, accurately – by Phipps FM in Drew v Bates [2005] FMCA 1221 as three matters: 1. explanation for delay 2. any prejudice to the respondent 3. whether the applicant has an arguable case.”…
VAENUKU v Terrigal Trojans Rugby Club Inc
[2010] FMCA 701 Para 3

…llips v Australian Girls’ Choir with approval and her Honour also agreed with Phipps FM’s distillation of those seven principles (in Drew v Bates [2005] FMCA 1221) into three matters, namely: a)explanation for delay; b)any prejudice to the respondent; and c)whether the applicant has an arguable case.…
L v Commonwealth of Australia & Ors
[2008] FMCA 658 Para 3

…llips v Australian Girls’ Choir with approval and her Honour also agreed with Phipps FM’s distillation of those seven principles (in Drew v Bates [2005] FMCA 1221) into three matters, namely: a)explanation for delay; b)any prejudice to the respondent; and c)whether the applicant has an arguable case.…
Ferrus v Qantas Airways Ltd
[2006] FCA 812 Para 1

…The seven principles were summarised – in my view, accurately – by Phipps FM in Drew v Bates [2005] FMCA 1221 as three matters: 1.explanation for delay 2.any prejudice to the respondent 3.whether the applicant has an arguable case. DELAY…
Ingram-Nader v Brinks Australia Pty Limited
[2005] FCA 1541 Para 18

…As Federal Magistrate Phipps observed in Drew v Bates & Anor [2005] FMCA 1221 at [14], the principles in Phillips fall into three categories; firstly, whether there is an explanation for the delay, although there is no onus to establish this; secondly, whether the applicant has an arguable case; and finally, whethe…

View all 9 citing cases →

Cases cited in this decision · 8 of 8 shown

Leslie v Graham
[2002] FCA 32

…Beling v Stapels [2001] FMCA 135 Leslie v Graham (2002) FCA 32 Phillips v Australian Girls Choir [2001] FMCA 109…
Beling v STAPELS
[2001] FMCA 135

…Beling v Stapels [2001] FMCA 135 Leslie v Graham (2002) FCA 32 Phillips v Australian Girls Choir [2001] FMCA 109…
Phillips v Australian Girls' Choir Pty Ltd & Anor
[2001] FMCA 109 Para 13

…ith an application for an extension of time under sub-s.46PO(2) have been described in some detail by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 at [10] and referred to in Beling v Stapels (2001) FMCA 135: In the light of A'Hearn's case, it is clear that at least one of the principles referred…
Comcare v A'Hearn
[1993] FCA 498 Para 13

…h there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation f…
Wedesweiller v Cole
[1983] FCA 91 Para 13

…en the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller v Cole (1983) 47 ALR 528).…
Lucic v Nolan
[1982] FCA 232 Para 13

…mmission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be gi…
Ralkon v Aboriginal Development Commission
[1982] FCA 161 Para 13

…nless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 AL…
Doyle v Chief of General Staff
[1982] FCA 129 Para 13

…er the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287) 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militat…

Legislation cited in this decision · 3

Federal Magistrates Court Rules 2001 (Cth)
1 mention (from Para 11)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
1 mention (from Para 1)
Sex Discrimination Act 1984 (Cth)
1 mention