Flashman v Department of the Attorney General
[2019] FCCA 2111
•2 August 2019 (by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FLASHMAN v DEPARTMENT OF THE ATTORNEY GENERAL | [2019] FCCA 2111 |
| Catchwords: PRACTICE AND PROCEDURE – Application to extend time to bring application – consideration of factors – where very substantial delay – whether adequate explanation for delay – illness – access to legal advice – whether prejudice – whether grounds of proposed application reasonably arguable. EMPLOYMENT – Whether constructive dismissal. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO Fair Work Act 2009 (Cth), s.535 Federal Circuit Court of Australia Act 1999 (Cth), s.75 Federal Circuit Court Rules 2001 (Cth), r.41.02A | ||
| Cases cited: ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 | ||
| Applicant: | VALERIE GRACE FLASHMAN | |
| Respondent: | DEPARTMENT OF THE ATTORNEY GENERAL |
| File Number: | PEG 361 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 4 March 2016 |
| Date of Last Submission: | 4 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 2 August 2019 (by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr A Mason |
| Solicitors for the Respondent: | State Solicitor’s Office |
ORDERS
The application for an extension of time in which to bring the application filed 3 August 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 361 of 2015
| VALERIE GRACE FLASHMAN |
Applicant
And
| DEPARTMENT OF THE ATTORNEY GENERAL |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application for an extension of time (“Extension of Time Application”) to bring an application alleging unlawful discrimination (“Proposed Application”). The applicant, Valerie Grace Flashman (“Ms Flashman”), alleges that the respondent, the Department of the Attorney General (“DoAG”) unlawfully discriminated against her in breach of the Disability Discrimination Act 1992 (Cth) (“DD Act”). In order for the Court to consider the Proposed Application, it must first determine if the Extension of Time Application ought to be granted.
The following materials were relied upon in the course of argument on the Extension of Time Application:
a)the affidavit of Ms Flashman sworn 3 August 2015 (“First Flashman Affidavit”);
b)the affidavit of Ms Flashman sworn 2 September 2015 (“Second Flashman Affidavit”);
c)the affidavit of Ms Giselle Alexandra di san Marzano, a Senior Assistant State Solicitor, who is responsible for the carriage of the matter at the State Solicitor’s Office, who are the solicitors for DoAG, sworn 22 February 2016 (“Marzano Affidavit”); and
d)written submissions filed by Ms Flashman on 18 January 2016 and DoAG on 22 February 2016.
In preparing these Reasons for Judgment the Court has had access to, and read, the transcript of the hearing of the Extension of Time Application.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers set out at [2] and [3] above. Additionally, the Court has read and had regard to, where relevant, the other documents filed with the Court’s Registry. It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.
Background
Ms Flashman’s complaint is that she was discriminated against in the course of her employment with the Office of the Public Advocate (“OPA”), an office of DoAG. On 29 February 2012 Ms Flashman was diagnosed with Reynaud’s Syndrome and cancer. In broad terms, Ms Flashman alleges that DoAG failed to make reasonable adjustments for her in the workplace and treated her unfavourably contrary to the DD Act. Ms Flashman claims that:
a)her requests for alternate working arrangements were denied;
b)she was stigmatised by others in the workplace because of her diagnosis; and
c)no other employee has been subjected to what she has been subjected to.
Ms Flashman says that the effect of DoAG’s actions caused her to submit what she says was a forced resignation in April 2013, and that thereby she was constructively dismissed.
Ms Flashman made a complaint to the Australian Human Rights Commission (“AHRC”) in April 2013. On 23 October 2013 the AHRC terminated her complaint pursuant to the then s.46PH(l)(i) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) on the basis that the President of the AHRC was satisfied that there was no reasonable prospect of the matter being settled by conciliation. 649 days later, on 3 August 2015, Ms Flashman sought to file the Proposed Application in this Court seeking the following orders (transcribed verbatim):
l. An order pursuant to s.46PO(4)(b) of the AHRC Act that Ms Flashman be reinstated/redeployed to her former position of Level 5 Public Guardian or redeployment to the Level 5 Monitoring Public Guardian position.
2. An order pursuant to s.46PO(4)(a) of the AHRC Act directing the Department to re-credit Ms Flashman’s leave entitlements for the period stated.
3. An order pursuant of to s.46PO(4)(b) of the AHRC Act directing the Department to provide a public apology to Ms Flashman in the form of a half page newspaper advertisement in The West Australian within 14 days of the decision which summarises the decision and the declarations and orders made.
4. An order pursuant of s.46PO(4)(d) of the AHRC Act that the Department pay Ms Flashman compensation for loss or damaged suffered by Ms Flashman caused by the Department's contraventions of the DDA.
5. An order pursuant to s.46PO(4)(a) of the AHRC Act directing the Department not to repeat or continue such unlawful discrimination.
6. Interest.
The Court made orders on 13 August 2015 directing Ms Flashman to file any affidavit evidence in support of her Extension of Time Application in circumstances where DoAG indicated that if the evidence was sufficient to support the grant of an extension of time, DoAG would consent to the extension of time sought, and the Proposed Application could then be heard. Pursuant to the Court’s orders of 13 August 2015 Ms Flashman filed the Second Flashman Affidavit. On 16 September 2015 DoAG wrote to Ms Flashman indicating that in DoAG’s view the evidence provided in the Second Flashman Affidavit was not sufficient to explain the delay for the period after February 2014. That same letter invited Ms Flashman to contact DoAG to confer about filing further evidence to substantiate her reasons for the delay after that time. Ms Flashman responded on 17 September 2015 stating she was not going to file any further evidence: Marzano Affidavit, Annexure B.
Extension of Time Application – legislation and factors
Section 46PO of the AHRC Act gives the Court jurisdiction to hear an application alleging unlawful discrimination if the complaint the subject of the application is the same in substance as that which has been terminated under s.46PH of the AHRC Act. In relation to the time for filing an application s.46PO(2) of the AHRC Act provides as follows:
(2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
It follows that the Proposed Application ought to have been filed by 22 December 2013.
It was accepted by DoAG that s.46PO(2) of the AHRC Act confers a discretion on this Court to extend the time in which a person can bring an application: Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449; (2007) 97 ALD 721 at [47]-[48] per Middleton J (“Bahonko (No 4)”). This discretion involves the Court considering whether the grant of the extension of time is necessary to “do justice between the parties”: Gallo v Dawson (1990) 64 ALJR 458; (1990) 93 ALR 479 (“Gallo”) at 480 per McHugh J. While not exhaustive, the factors pertaining to the discretion to extend time formulated in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315, FCR at 348-349 per Wilcox J, remain widely applied and authoritative in circumstances where a statute endows the Court with a discretion to extend time. Those factors, which have been applied in the human rights context: see Ferrus v Qantas Airways Ltd [2006] FCA 812; (2006) 155 IR 88 (“Ferrus”); Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCA 94 at [11] per Farrell J, can be summarised as:
a)the extent of, and explanation for, the delay;
b)whether there is any prejudice to a party in either granting or refusing to grant the extension; and
c)whether there is any arguable merit in the application.
Ms Flashman’s grounds, evidence and submissions
The Extension of Time Application relies upon the following grounds:
a. A recurrence of cancer was found in June 2013 prior to the finalisation/termination of the complaint before the Human Rights Commission.
b. I commenced chemotherapy and was listed for priority surgery.
c. Priority surgery did not take place until January 2014.
d. There has been an extended period of recovery and adjustment to resulting disabilities.
e. I have recently been assessed as fit for work as of 06/07/2015. Medical certificate attached (annex 1).
In the Second Flashman Affidavit, Ms Flashman stated that her request for an extension of time was made on the basis of continued financial, psychological and medical hardship, and the continued discrimination she faced arising from her complaint to the AHRC. In her explanation for the delay she states that:
a)during the course of the AHRC proceedings she was diagnosed with a recurrence of the cancer and commenced chemotherapy immediately;
b)she required surgery which she underwent in January 2014, followed by a lengthy recovery process;
c)her mobility was compromised from that time for approximately 3-4 months and she was restricted to her home and near surroundings;
d)she now has a permanent lymphoedema to the right leg and loss of sensation from her groin to her knee;
e)since around February 2015 she has experienced chronic back pain from a lower spinal compression fracture, which was being monitored on a quarterly basis. In July 2015 Ms Flashman was certified as fit to work by her treating GP;
f)most of the medical reports and doctor reports in evidence are dated in 2013 and 2014, save for a letter written by Dr Siobhan Ng dated 13 August 2015 which states:
I would consider that her psychological and physical state was such that it would have made it difficult to coordinate or think of managing an appeal between July 2013 and February 2014… Recovery was also complicated by a fracture.
g)she:
i)telephoned community legal services in October 2013 for assistance with filing the Proposed Application in this Court, but she was advised that there would be a conflict of interest due to the legal services being funded by DoAG; and
ii)approached two pro-bono lawyers at this time for assistance, but both were unable to act for her.
In her written submissions Ms Flashman stated:
a)she has been denied legal representation due to poverty and bias against her as she is a former employee of DoAG and community legal centres receive their primary source of funding from DoAG and pro-bono lawyers choose not to act out of self-interest;
b)she has had limited financial resources and has had to relocate which was caused by her being unable to continue her employment with DoAG;
c)the accumulated effect of periods of medical treatment and rehabilitation, the victimisation and mistreatment in the workplace, the alleged discrimination and the betrayal and misplaced loyalty to DoAG hindered Ms Flashman’s physical and psychological ability to bring the matter to the Court unrepresented until now;
d)her physical and psychological state has been such that she was prevented from physically coming to the Court and being able to speak and write hence she was unable to put her case in the best way possible and if she had done so earlier it may have brought her “in contempt of the Court” as a “consequence of premature and clumsy undertaking”;
e)her medical, financial, legal and personal hardships have plagued her ability to bring the Proposed Application before now and these hardships were beyond Ms Flashman’s control, uninvited and still remain unresolved. It is these extenuating circumstances that explain the entire period of time for the delay;
f)there has been no prejudice to DoAG and there has been no advantage to Ms Flashman by reason of the delay; and
g)the Proposed Application is a bona fide claim under the DD Act which, in the interests of justice, needs to be heard.
At hearing Ms Flashman’s oral submissions took the above matters no further.
DoAG’s submissions
DoAG’s submissions can be summarised as follows:
a)it is accepted that DoAG is unlikely to be prejudiced in the granting of an extension of time, however, as the absence of prejudice is not sufficient to warrant the granting of an extension of time the Court should focus upon the circumstances of the delay and the merit of the Proposed Application;
b)the evidence in the Second Flashman Affidavit indicates that Ms Flashman was not in a psychological or physical state to make the Proposed Application between July 2013 and February 2014 and DoAG accepts this is a reasonable explanation for the delay between this period;
c)there is no evidence or reason for the delay between February 2014 and August 2015 sufficient to demonstrate why Ms Flashman was unable to commence proceedings, and Ms Flashman was put on notice of this by DoAG and chose not to provide any further materials;
d)the Court cannot be positively satisfied an extension of time should be granted where there is an absence of any evidence supporting Ms Flashman’s explanation for the delay between February 2014 and August 2015;
e)in circumstances where the unexplained delay is significant – approximately 18 months – the absence of evidence to explain the delay should weigh heavily against granting an extension of time;
f)at its highest, Ms Flashman’s case is a circumstantial one and there is no direct evidence of the alleged discrimination in the materials provided to the Court;
g)there is no evidence that DoAG failed to provide reasonable adjustments or flexible working arrangements, rather in the First Flashman Affidavit there is evidence that DoAG had a preference that Ms Flashman undertake a graded return to work, but Ms Flashman indicated she wanted to return to work on a full time basis; and
h)there is no evidence the applicant was subject to mistreatment or humiliation, rather there is evidence Ms Flashman was offered an apology by a staff member if her questions were insensitive and upset Ms Flashman, and there is no evidence Ms Flashman was inhibited or treated less favourably when attending medical appointments, rather the evidence indicates Ms Flashman was allowed to and did attend her medical appointments.
In response to questions from the Court, DoAG added that the principal explanation given for the delay was Ms Flashman’s health, and in addition, her impecuniosity and housing arrangements, but there is nothing in the materials sufficient to establish a reasonable explanation for the entire 18 month delay before Ms Flashman filed the Proposed Application.
Consideration
Length of delay
The delay in the filing of the Proposed Application is very substantial, being some 588 days, or 19 months, beyond the statutory time allowed by virtue of s.46PO(2) of the AHRC Act. The delay is thus almost ten times the statutory 60 day limitation period.
The High Court has noted that where there is a substantial delay, that it may warrant the dismissal of the application for an extension of time even if there is merit in the underlying application: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402 (“Brisbane South”), CLR at 553 per McHugh J. Where a significant period of time has elapsed the limitation period should be “rigidly applied”: Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) at [13]-[16] per McHugh J, notwithstanding that it “may often result in a good cause of action being defeated”: Brisbane South at 553 per McHugh J. A delay of this length is “excessive”: Tran v Minister for Immigration & Border Protection [2014] FCA 533 (“Tran”) at [38] per Wigney J. More recently in Vella v Minister for Immigration & Border Protection [2015] HCA 42; (2015) 90 ALJR 89; (2015) 326 ALR 391 (“Vella”) the High Court had before it an application for an order extending the time to make an application by 16 months. In refusing that order the Court stated that given the length of the extension that was sought, the Court would “only reach” the required level of satisfaction if it were persuaded that the case was “exceptional”: Vella at [3] per Gageler J.
The merits of the Proposed Application alone are not sufficient to outweigh the very substantial delay in bringing the Proposed Application (as to the reasons for that conclusion see [42]-[65] below), and Marks and Brisbane South make clear that it is not the law that an extension of time will be granted merely because a matter arguably has some merit. As noted in Brisbane South even a good cause of action may be defeated by virtue of a limitation period. Even accepting, on the basis of DoAG’s concession, that the relevant delay may be shorter than 588 days, if the period commences on 1 March 2014 it remains the case that the delay is 521 days (or approximately 17 months), and is a case in which, in the Court’s view, the substantial delay in bringing the Proposed Application is of itself so lengthy that it justifies not granting the Extension of Time Application.
Reason for the delay
DoAG accepts Ms Flashman’s explanation for the delay until February 2014. It does not accept there is any reasonable explanation for the 521 day period thereafter.
The Court considers, as has been recognised previously, that the longer the delay, the more persuasive an explanation needs to be in order to justify the exercise of the discretion to extend time: Jess v Scott & Ors (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett J; Tran at [38] per Wigney J.
There is no dispute that Ms Flashman was aware that she had only 60 days to file an application to this Court. She provided evidence that she had sought legal assistance to do so, but none was forthcoming. In the Second Flashman Affidavit at Attachment 34, Ms Flashman provided two letters she had written to pro-bono legal co-ordinators. On 23 October 2013 she was advised of the termination of the AHRC Complaint by the President of the AHRC: see [7] above. The Court notes that Ms Flashman says that no pro bono legal assistance was forthcoming, but there is no evidence of any written response from the pro bono legal co-ordinators that Ms Flashman wrote to, or the basis for their not providing pro bono legal assistance, or the date or dates on which they said no assistance would be forthcoming. At the bottom of her letters to the pro bono legal co-ordinators Ms Flashman wrote “If I am to progress this matter to the next step it will be self-represented. If this is the case I feel the matter will go no further.” This is a matter the Court considers relevant as it suggests Ms Flashman had indeed considered bringing the now Proposed Application as a self-represented litigant within the time limit, but decided not to.
Ms Flashman’s failure to make the Proposed Application earlier is sought to be explained by a lack of legal advice and access to a lawyer. In this regard, the application for an extension of time proceeds on a false premise which is inconsistent with previous authority of the High Court, the Federal Court and this Court.
In Marks at [17] per McHugh J the High Court observed as follows:
An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.
In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J the Federal Court observed that:
Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis [1994] HCA 51;(1994) 181 CLR 309 at 329-331; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW [2010] FCAFC 41; 183 FCR 575 at [30].
In MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev this Court observed that there is no right to legal representation in proceedings in this Court.
Albeit that there is no right to legal representation in proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to waive a requirement or extend a relevant time limitation: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J, but more particularly where there is only a short delay, as in MZZIV, where the delay was 11 days and considered by the Federal Court to be “not significant”: MZZIV at [1] and [5] per Mortimer J, or where it is conceded that the delay was “not substantial”, and where the Minister also conceded that there would be no prejudice: ADN15 at [30] per Charlesworth J.
In Tran (where there was an 18 month delay) in finding the explanation for the delay to be neither adequate nor satisfactory the Federal Court observed as follows at [33]-[35] and [38] per Wigney J:
33. Mr Tran’s explanation for the delay was that when the Tribunal affirmed the decision to cancel his visa, he asked counsel who represented him before the Tribunal to advise him on the prospects of success if he applied to the Court for a review of the Tribunal’s decision. Counsel advised him that there was no error of law and, presumably, that therefore his prospects of success were low. He then went to the Prisoners Legal Service. There he received advice from a legal advisor that he would be in a better position to conduct research and obtain legal advice when in immigration detention after his release from prison. He was unable to obtain any other legal advice at the time because neither he nor his aunt was in a position to pay for private legal advice. As a result, Mr Tran did nothing further towards filing an application whilst he was in prison.
34. On his release from prison and upon his transfer to immigration detention in December 2012, Mr Tran applied for legal aid. That application was rejected because the prospects of successfully challenging the Tribunal’s decision were low. He then received legal advice that he could or should pursue other avenues potentially available to him under the Act. It appears that he also was advised to write to the Minister seeking his intervention. He apparently took both these steps, however both were unsuccessful. It was at this time that Mr Tran began to do his own research. He discovered the existence of the Direction and formed the view that the Tribunal had not correctly applied the Direction.
35. This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship[2008] FCA 298 at [6]; Manna at [17].
38. The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.
While it is unfortunate that Ms Flashman could not obtain legal assistance, a lack of legal knowledge is a misfortune, not a privilege that one can use to seek indulgences or exceptions to what are otherwise the rules: Gallo at 481 per McHugh J. Furthermore, a party in a civil proceeding does not have a right to legal representation: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [24] per Sackville, Marshall and Lehane JJ; Papas v Westpac Banking Corporation [2014] FCA 290 at [56] per Rangiah J (and the other Federal Court cases there cited); and the cases cited at [24]-[27] above.
The Court notes that there was very limited evidence of attempts to retain legal assistance, and that the attempts were not ongoing or extensive to any degree at all. Furthermore, for reasons set out at [22] above, Ms Flashman was aware of the time limitation, but made a decision not to make her Proposed Application at that time, as she could have done, and to seek legal advice later, and then did not make the Proposed Application expeditiously even when no pro bono legal assistance was forthcoming. After no pro bono legal assistance was forthcoming from the two approaches made, there is no evidence of what further steps were taken to obtain legal assistance by Ms Flashman. The Court can only conclude that there were no further attempts to obtain legal assistance during the period prior to Ms Flashman eventually making the Proposed Application herself. The Court therefore does not accept that Ms Flashman’s assertion that she was unable to obtain legal advice or representation in the period from November 2013 to August 2015 is an adequate explanation for the delay.
Ms Flashman’s primary reason for the delay relates to her medical conditions, and her mental wellbeing arising therefrom. The difficulty with that explanation is again a lack of cogent evidence, in this case appropriate medical evidence as to Ms Flashman’s condition or conditions and the effect thereof during the relevant period. There was a letter from Ms Flashman’s general practitioner, written in August 2015 just 10 days after the Proposed Application was filed, and which relates specifically to her psychological and physical state, but which limited the period during which she might not be able to deal with the making of the Proposed Application to the period between July 2013 and February 2014. DoAG accepted that this is sufficient explanation for a delay until February 2014.
The Second Flashman Affidavit annexed a mental health care plan dated 23 May 2013 and described Ms Flashman as suffering from “low mood”. The report was dated in mid-2013 and precedes by many months the time at which the Proposed Application was to be made, and indeed relates to a period prior to the termination of the complaint to the AHRC, and therefore the Court considers this is an insufficient reason to explain the delay. Ms Flashman was subsequently assessed as “fit to work” on 6 July 2015 by her general practitioner. That Ms Flashman was deemed fit to work does not demonstrate that she was previously incapable or unfit to make the Proposed Application. There is no medical evidence, which indicates that Ms Flashman could not have taken steps to file the Proposed Application at any time after February 2014. Even after the 6 July 2015 assessment there was a further period of four weeks before the Proposed Application was made. The need for proper medical evidence (and not just bare statements in medical certificates or reports) explaining why a litigant is not able to take certain steps is generally a necessity in proceedings such as this, particularly where an indulgence, such as an extension of time, is sought: NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6]-[8] per Lindgren JJ; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffiths and Mortimer JJ; Singh v Minister for Immigration & Border Protection [2016] FCA 108 at [20] per Pagone J.
To the extent Ms Flashman submits she was unable to physically attend the Court to make the Proposed Application because “of medical confinement, chronic back pain through injury to an existing spinal fracture, working through the psychological damage of workplace mistreatment and the ongoing state of distress”, there is evidence that Ms Flashman had a “Mild compression fracture of L4”: Second Flashman Affidavit, Attachment 38, and that this requires pain medication and has the consequence of reduced mobility: Second Flashman Affidavit at [18]. The evidence indicates that Ms Flashman was to have follow-up appointments at three monthly intervals to monitor this. There is no indication Ms Flashman received any treatment for this other than being monitored as an outpatient. The fracture makes her prone to other injuries and vulnerabilities but the Court does not consider this a reasonable explanation for the delay as Ms Flashman has not indicated there has been any improvement, presumably she still carries the fracture and suffers from the same pain that she asserts inhibited her from filing the Proposed Application earlier, yet she has done so now. There is simply insufficient evidence to indicate why it is that Ms Flashman could not therefore have filed the Proposed Application much earlier than she did. Also, there is no indication as to why Ms Flashman could not, if it was necessary for her to file the Proposed Application over the Registry counter (as to which see [34] below), why another person could not have done so for her.
The Court has operated an electronic filing system since the second half of 2014 that allows litigants to file online without the need to attend a Court Registry, and that information is readily available on the Court’s website. There is no evidence of enquiries being made, by telephone or otherwise, by Ms Flashman, or on her behalf, as to how she might have filed her application remotely. In that regard, it needs to be noted that the initiation of an application in relation to a contravention of federal discrimination law in this Court requires no more than the filing of the application form required to be filed under r.41.02A of the Federal Circuit Court Rules 2001 (Cth), and does not require the filing of affidavits, or additional materials, or indeed the setting out of the claim of discrimination in a manner which discloses its substance: Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 at [11] per Judge Lucev; Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge (No 2) [2017] FCCA 190 at [37] per Judge Lucev, and the Court notes that the equivalent form for the making of human rights applications in the Federal Court has been held not to be a form of originating process, a pleading or particulars of a pleading: Reynolds v JB Morgan Administrative Services Australia Ltd & Anor(No 2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 at [17] and [24] per Rares J; Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186 (“Orica Australia”) at [25] per Allsop J. The forms and process for filing of human rights applications in this Court are therefore relatively simple and straightforward (and arguably designed to be so because of the proliferation of self-represented litigants in this area of the law).
There is insufficient evidence that Ms Flashman was in fact physically incapable of attending the Court, or to otherwise explain the reasons for her delay in bringing the Proposed Application after February 2014. Ms Flashman indicated at various points in her affidavit evidence and submissions that the recovery process was long, but there is no medical evidence as to the ongoing effect of Ms Flashman’s medical condition, and in the circumstances the delay between February 2014 and August 2015 is not sufficiently explained, and Ms Flashman has placed no material before the Court of any substance to persuade it otherwise.
Ms Flashman also asserted that her financial circumstances did not allow her to apply to the Court prior to this time. There is no evidence before the Court as to Ms Flashman’s finances, and whilst it can be inferred that Ms Flashman’s financial position once she ceased employment with DoAG was not as good as it might have been previously, there is no, or no sufficient, evidence to draw any conclusions as to Ms Flashman’s financial position. Where, however, it seems that the reason for which Ms Flashman required those finances was to afford legal representation, for the reasons set out above this is not a reasonable explanation in any event: see [22]-[30] above. Furthermore, Ms Flashman eventually filed the Proposed Application in this Court without legal representation and has indicated to the Court that she remains in financial hardship: Second Flashman Affidavit at [22]. In those circumstances, and without any evidence before the Court to substantiate the financial difficulties, this is neither a persuasive or adequate reason for the delay.
The Court has taken into account the fact that Ms Flashman is self-represented, and has already noted the observations of the Federal Court in MZZIV at [5] per Mortimer J and ADN15 at [30] per Charlesworth J. In Tinkler v Elliott [2012] EWCA Civ 1289; [2012] NLJR 1323; [2012] All ER (D) 94; [2013] CP Rep 4 (“Tinkler”) at [32] per Kay LJ (Munby and Lewison LJJ agreeing) the Court of Appeal of England and Wales made the following comment (which has often been referred to with approval by the Federal Court) in respect of self-represented litigants seeking an extension of time:
I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person …
In this case Ms Flashman was afforded the opportunity, by way of an indulgence, to file the Second Flashman Affidavit: see [8] above, so that she could put before the Court any material that she had that might explain the period of delay. Further, DoAG, taking the view that the explanation provided in the Second Flashman Affidavit was not sufficient, invited Ms Flashman to confer with them with the view to her being given the opportunity to file further affidavit material, but Ms Flashman declined that opportunity. Ms Flashman thereby elected to forego a further opportunity “to articulate in an intelligible or comprehensive way a case she wished to propound” with respect to the delay: Huang v Abayawickrama [2012] FCA 1504 at [48] per Rares J (wherein Tinkler was cited at [47] per Rares J). In the above circumstances, the fact that Ms Flashman is self-represented might have afforded her some indulgence at “the margins”: Tinkler at [32] per Kay LJ, which she has, in the Court’s view, been afforded, but not an indulgence which extends to 521 days in relation to an already relatively long time limitation of 60 days.
The Court has considered whether the cumulative effect of the factors set out above, namely, a lack of legal representation, Ms Flashman’s medical condition, and her self-representation, would warrant the extension of time now sought. Having regard to all of the matters set out above in relation to those matters, and in relation to the nature of the application required to be made, the Court is of the view that a delay of at least 521 days cannot be justified even upon a cumulative consideration of the factors as an adequate reason for that delay.
In all of the above circumstances, the Court is of the view that there is no adequate explanation for the delay, and in particular the delay between February 2014 and August 2015, in filing the Proposed Application, and that the lack of an adequate explanation weighs heavily against the grant of the Extension of Time Application.
Prejudice
DoAG has conceded that there would be no prejudice if the Extension of Time Application were granted. Absence of prejudice to DoAG is insufficient in itself to warrant an extension of time: Bahonko (No 4) at [53] per Middleton J; Ferrus at [31] per Logan J. Given DoAG accepts there would be no prejudice if the Extension of Time Application were granted, the Court need not address this further.
Merits of the Proposed Application for the purposes of the Extension of Time Application
In determining the merits of the Proposed Application for the purposes of the Extension of Time Application the Court need only examine the merits of the Proposed Application in a reasonably impressionistic manner. The issue is not whether Ms Flashman would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the merits of the Proposed Application, reveals that there might be a reasonably arguable case that has a reasonable prospect of success, if fully examined as to its merit: Mladenov v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J.
Ms Flashman claims that she was discriminated against contrary to the DD Act. Specifically, Ms Flashman states that ss.5, 6, and 15 of the DD Act were breached and ss.21A and 21B of the DD Act were not met. The substance of the complaint appears to be that there has been a breach as:
a)there was a failure to make reasonable adjustments for Ms Flashman in respect of her workload and hours and offer of alternative duties;
b)Ms Flashman was subjected to intrusive questioning concerning her cancer and medical diagnoses, and was allegedly made to undergo a physical examination by a superior and was made to feel humiliated by inappropriate workplace discussions;
c)she was treated less favourably when attending medical appointments and in relation to her applications for leave, and was monitored closely by superiors in respect of her attendance at medical appointments;
d)Ms Flashman’s return to work was not treated appropriately, and she was referred to the Human Resources Department at DoAG on her return to work when she was not aware of any other person returning from illness or injury being referred, and she felt she was set up to fail and that there was a failure to allocate sufficient work such that she was under-utilised and over-monitored; and
e)the cumulative effect of the above matters was that Ms Flashman felt forced to resign from her position.
Direct disability pursuant to s.5 of the DD Act is discrimination requiring proof that because of Ms Flashman’s medical condition, DoAG treated, or proposed to treat, her less favourably than DoAG would treat a person without the disability in circumstances that are not materially different. Indirect disability discrimination pursuant to s.6 of the DD Act is discrimination which would require proof that, because of her medical condition, Ms Flashman did not or would not comply, or was not able to, or would not be able to, comply with a requirement or condition, and that DoAG did not make reasonable adjustments that would have enabled Ms Flashman to meet the requirement. Section 15 of the DD Act refers to the prohibition of discrimination, direct or indirect, in employment.
Ms Flashman refers to DoAG failing to meet ss.21A and 21B of the DD Act. These provisions relate to “exceptions” and are matters the Court would expect DoAG to plead if applicable and therefore it is unnecessary for Ms Flashman to address these. At no time did DoAG seek to demonstrate Ms Flashman had no reasonable prospect of success because one of these exceptions was applicable, rather it argued there was no merit in the claim Ms Flashman had been discriminated against in the course of her employment, and at its highest her claims were “circumstantial”.
The First and Second Flashman Affidavits do no more than contain allegations of discrimination, or recount events that Ms Flashman perceives to be discrimination. Whilst there is a “litany of complaints” there are no specific allegations of acts or omissions related directly to the provisions of the DD Act on which Ms Flashman relies, and a series of complaints rather than specific allegations of unlawful discrimination under the DD Act do not establish a reasonably arguable case: Walker v State of Victoria [2012] FCAFC 38 at [26] per Gray J; Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429 at [32] per Gray J. In any event, there is no sufficient material to support Ms Flashman’s claims that she was directly discriminated against or that the treatment she received was “because of” her disability or illness. The bulk of the material indicates that DoAG was taking a proactive and measured approach to ensure that Ms Flashman’s return to the workplace was going to be sustainable, that it did not adversely affect her interests, and that the actions that DoAG took were a part of a process designed to integrate Ms Flashman back into the workplace.
The evidence before the Court indicates that Ms Flashman’s doctor and Ms Flashman both indicated that she may need alternative working arrangements including reduced caseload, working from home and transitioning to a part-time role: First Flashman Affidavit, Attachments 1, 5, 6, 7 and 9. Ms Flashman’s doctor also indicated in September 2012 that Ms Flashman was fit to return to part-time or full-time capacity and “it will depend on her”. At a “Return to Work Meeting” on 12 October 2012 and in correspondence from DoAG to Ms Flashman dated 16 October 2012 the following was stated:
…it was emphasised that the Department was able to offer support in respect to a graduated return to work in terms of work hours and duties. Indeed this was the preferred position. The Department’s position reiterated its duty of care in assisting you return to the workplace following your period of absence due to significant illness. I confirm however, that it is your intention to return to work on a full-time basis and you do not require a graded return to work to be developed in respect to work hours.
Ms Flashman provides a different version of events at [123]-[124] of the First Flashman Affidavit stating that she was open to a part-time arrangement, however, the workplace relations manager stated that it would be full-time. On the evidence before the Court it appears that DoAG undertook a detailed and comprehensive process to assist Ms Flashman in her return to work and that it gave due consideration to her requirements but that Ms Flashman insisted on a return in a full-time capacity: expressly so in her letter dated 29 September 2012: First Flashman Affidavit, Attachment 15. There is no evidence that Ms Flashman was overloaded with additional duties. On more than one occasion DoAG referred to a graded return to full working duties and on more than one occasion Ms Flashman emphasised she wished to return to full duties: First Flashman Affidavit at [24]-[25], [117], [123], [156], Attachments 12, 15 and 19.
In Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220; (2014) 242 IR 405; (2014) 311 ALR 680 at [23] per Mortimer J the Federal Court referred to what was meant by “reasonable adjustments”:
To what does the adjustment relate? By s 5(2), it is made ‘for’ the person with a disability. It is not made ‘to’ the position the person occupies. It is not made ‘to’ the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification ‘for’ the person, which operates on the person’s ability to do the work she or he is employed or appointed to do.
Ms Flashman was appointed as a full time Level 5 Guardian. She was allowed to attend medical appointments and reduce her case load. She was unhappy with the case load before and after the adjustments were made. Reasonable adjustments need to operate on Ms Flashman’s ability to do the work that she was employed to do, but given the lack of direction in the medical certificate, there was no basis on which DoAG could determine any reasonable adjustments as the doctor had stated Ms Flashman was fit to return to full duties, but it would be at her discretion to determine her capabilities.
The Court does not, therefore, consider that there was a failure to make reasonable adjustments as required by the DD Act.
Ms Flashman also claims she was underutilised on her return to work and had not been allocated sufficient work. It was acknowledged in the First Flashman Affidavit at Attachment 19 that Ms Flashman would undergo a re-introduction to the workplace and work duties leading to a return to full duties that was to be guided by Ms Flashman who would request amendments as she felt capable. Ms Flashman nonetheless states that she was forced to “make up time” because of her needing to attend medical appointments. It appears Ms Flashman was unhappy with her workload before and after adjustments were made, and in any event the First Flashman Affidavit at Attachment 19 makes clear, as does Ms Flashman’s doctor, that Ms Flashman was undertaking to manage her return to full duties and would seek amendments as she felt confident to do so. Thus, it was Ms Flashman who determined her working arrangements.
As to Ms Flashman’s claims she was humiliated and subjected to inappropriate lines of discussion, again the evidence before the Court does not support this assertion. Ms Flashman states she was required to undergo a physical examination by a supervisor and that she was asked inappropriate questions concerning her illness. Attachment 5 of the First Flashman Affidavit contains email correspondence from March 2012 and May 2012. The March 2012 correspondence contains an apology from a colleague for upsetting Ms Flashman in asking questions concerning her illness. It added it was only done as the colleague believed Ms Flashman was open to discussing this and it was only asked for the purpose of determining how best to manage Ms Flashman’s workload. It suffices to observe that insensitivity is not discrimination for the purposes of ss.5 and 6 of the DD Act.
Ms Flashman complains that she was required to undergo a “physical examination” on two occasions. In the First Flashman Affidavit at [45] Ms Flashman affirms that she showed what was called the “PICC line” in her upper right arm to her manager in early May 2012. Ms Flashman did not make any claim of discrimination in respect of this, but did so when Ms Flashman was asked by her Senior Manager to show her the PICC line in late May 2012. A PICC line is a catheter inserted into a peripheral vein, usually on the arm, and threaded into a larger vein above the heart for the drawing and giving of blood, and treatments including intravenous fluids and drugs, especially for chemotherapy patients, and accessed via a needle inserted, usually through an external port outside the body. It is designed to stay in place for weeks or months and avoids the necessity for repeated needle sticks: What followed from the supervisor being shown the PICC line was a line of questioning that the Court considers was appropriate in assessing the occupational health and safety duties in respect of Ms Flashman and her undertaking her duties and taking her place in the workplace. The Court does not consider that this amounts to discrimination, but rather was a necessary incident of DoAG ensuring it upheld its common law duty of care and statutory occupational health duties to Ms Flashman and its clients.
It was alleged that Ms Flashman was discriminated against by being treated less favourably when attending, or by reason of having to attend, medical appointments and this was being used as a measure of her performance. There is nothing to substantiate this allegation beyond Ms Flashman’s statement. It appears her attendance at medical appointments was monitored and recorded, however this does not amount to discrimination as any employee absent from the workplace would reasonably be expected to account for their absence. Indeed, there is a positive obligation upon an employer to maintain up-to-date pay and leave records for the purposes of ensuring both proper payment and leave accrual and reduction records: see Fair Work Regulations 2009 (Cth), Pt.3-6, Div.3, Subdiv.1 – Employee records and s.535 of the Fair Work Act 2009 (Cth). It may be that Ms Flashman felt she was being scrutinised and that others were not required to “check-in” before or after absences during the day, however, there is no evidence before the Court in respect of this. The evidence before the Court simply indicates that Ms Flashman was allowed to attend medical appointments during working hours: First Flashman Affidavit, Attachment 19.
Insofar as Ms Flashman suggests she was discriminated against in relation to her applications for leave and was harassed into consenting to take periods of leave, there is again nothing to indicate that that occurred. Ms Flashman was on various forms of leave throughout her treatment. Ms Flashman stated that she had supplied medical certification that she was unfit for work from May 2012 to September 2012 and was placed on unpaid leave for that period. It was also her evidence that she had exhausted all of her sick and annual leave entitlements attending appointments prior to June 2012: First Flashman Affidavit at [36]. Ms Flashman had an entitlement to a certain amount of leave: that she exhausted that because of her circumstances and was required to be placed on unpaid leave does not amount to discrimination.
Ms Flashman finally contends that her resignation was in fact a “constructive dismissal”.
In Western Excavating (ECC) Ltd v Sharp [1978] QB 761; [1978] 2 WLR 344; [1978] ICR 221; [1978] 1 All ER 713 (“Western Excavating”) QB at 769 per Lord Denning MR, the Master of the Rolls described the basis of constructive dismissal as follows:
If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or … he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.
In Spencer v Dowling & Anor [1997] 2 VR 127 (“Spencer”) at 160 per Hayne JA it was said:
…. But the fundamental question presented by these so-called “constructive dismissal” cases is whether the employer has evinced an intention no longer to be bound by the contract of employment, i.e. whether the employer has repudiated the contract of employment. No doubt the question whether conduct does evince such an intention is to be judged objectively.
The conduct which may constitute constructive dismissal was further described in Orica Australia at [141] per Allsop J as follows:
Constructive dismissal is an unlawful termination of the contract of employment in circumstances where the employee leaves, without an express act or enunciation of “dismissal” by the employer. It will be taken to be a dismissal (hence the word “constructive”) if the employer has behaved towards the employee in a way that entitles the employee to treat the employment as at an end.
In light of the authorities the Court, in determining if Ms Flashman was constructively dismissed or whether DoAG threatened to constructively dismiss her, the Court has considered:
a)if she was effectively forced to resign by DoAG in the face of a threatened or impending dismissal, or whether there was a course of conduct that forced her to resign as a response to the conduct, that being the only reasonable choice: Western Excavating QB at 769 per Lord Denning MR; Spencer at 160 per Hayne JA; and
b)the extent to which the things said by DoAG can reasonably be considered statements of concluded intentions to no longer be bound by the contract: Orica Australia at [141] per Allsop J.
In the Second Flashman Affidavit at Attachment 30 Ms Flashman emphasises her complaint of constructive dismissal to the AHRC and while she refers to her treatment as a factor in her resignation, she states that:
Resigned finally due to… an inability to get workplace injury treatment…
I was left with no choice but to resign and seek treatment independently, which has enabled me to apply for and be successful in making a return to the workplace after more than a year of being unwaged. I was not fit to return to my former workplace until this treatment was given.
From those statements it appears that the significant factor in Ms Flashman’s resignation was that she was unable to obtain workplace injury treatment. Ms Flashman may have strongly felt as though the only option was for her to resign, however, in the Court’s view Ms Flashman made a considered decision that she could not return to the particular workplace at DoAG. Ms Flashman found employment shortly after this time. Further, there is nothing in the conduct of DoAG which points to their endeavouring to force Ms Flashman to resign, or that they conducted themselves in the manner which did force her to resign in response to their conduct or evince an intention to no longer be bound by the contract of employment. On any view of the materials it is evident that DoAG was taking significant steps to endeavour to ensure that Ms Flashman’s treatment in the workplace with respect to her injury was both appropriate and ongoing as required.
Taking Ms Flashman’s affidavit evidence at its highest, the Court is of the view that Ms Flashman’s discrimination claims have no reasonable prospect of success. The claims isolate discrete events over a period of almost ten months that Ms Flashman claims to have been subjected to. It is clear that most of what Ms Flashman claims to have been discriminatory is based on her subjective appraisal of what occurred and how it made her feel. From an impressionistic view of the evidence, DoAG had a clear process for the management of persons with injuries and illnesses that allowed for reasonable adjustments to be considered and for Ms Flashman to play an active part in her return to work.
The impression the Court takes from the evidence before it is that Ms Flashman was given the full benefit of her employee entitlements and was treated no differently to any other employee. Further, adjustments were made for Ms Flashman and on the evidence DoAG accommodated Ms Flashman’s treatment and her return to work in a manner that in no way treated her less favourably. Ms Flashman’s affidavits affirm that she “thinks” she was treated in a certain way because of her illness and much of what she states is based on subjective assumptions. Given the subjective nature of the material before the Court and lack of corroborative material supporting Ms Flashman’s Proposed Application, the matters referred to in the materials do not sufficiently satisfy the Court that the claim of discrimination, whether direct or indirect, would have a reasonable prospect of succeeding. The Court considers that Ms Flashman has not established sufficient merit in her Proposed Application to establish a case which is reasonably arguable or which has reasonable prospects of success, and in those circumstances the Court should not therefore, in any event, extend time: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 (“SZSDA”) at [39] per Foster J; MZZIV at [5] per Mortimer J. It follows that for the purposes of the Extension of Time Application the merits do not support Ms Flashman’s application to extend time for the filing of the Proposed Application.
Conclusion and orders
The Court has concluded that:
a)the delay in making the Proposed Application in this case is 588 days, and accepting that there may be medical reasons for the delay up until the end of February 2014, the 521 day delay from February 2014 to the date of the Proposed Application being made, on 3 August 2015, is a delay of such length that it alone in this case is a sufficient basis for dismissal of the Extension of Time Application;
b)the length of the delay in making the Proposed Application, together with an insufficiently adequate explanation for the delay, taken together, are also a sufficient basis for dismissal of the Extension of Time Application;
c)the grounds of the Proposed Application are not reasonably arguable and have no reasonable prospects of success, and the Court should not therefore, in any event, extend time: SZSDA at [39] per Foster J; MZZIV at [5] per Mortimer J, but, even if the Proposed Application was arguable and had reasonable prospects of success, the Court, in the exercise of its discretion under s.46PO(2) of the AHRC Act, finds that for the reasons leading to the conclusions both individually in the case of subparagraph (a) above, and, in combination, subparagraphs (a) and (b) above, would warrant dismissal of the Extension of Time Application in any event, and thus even if Ms Flashman had a good case it would be defeated by the time limitation: Brisbane South, CLR at 553 per McHugh J; Tran at [38] per Wigney J; and
d)further:
i)the Court is not persuaded, and particularly so having regard to the findings in subparagraphs (a), (b) and (c) of this paragraph, and the notoriously heavy and ongoing caseload in the Perth Registry of this Court, that it would be in the interests of the administration of justice to extend time in this case; and
ii)there is nothing in this case which makes it “exceptional” so as to warrant an extension of time. Vella at [3] per Gageler J.
The Extension of Time Application must be dismissed, and there will be an order accordingly. It follows that the Proposed Application is incompetent. In circumstances where the Extension of Time Application has been unsuccessful it is unnecessary to make a further order that the application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J.
The Court will hear the parties as to costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 2 August 2019
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