Gill v Karan Grewal Pty Ltd - [2020] FCCA 1202

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v KARAN GREWAL PTY LTD

[2020] FCCA 1202

Catchwords:
PRACTICE AND PROCEDURE – Costs – where party seeking an indulgence by way of extension of time.

PRACTICE AND PROCEDURE – Pleadings – application to strike out statement of claim.

Legislation:

Fair Work Act 2009 (Cth), sub-div.B, div.3, pt.6-1

Federal Circuit Court of Australia Act 1999 (Cth) ss.14, 18

Federal Circuit Court Rules 2001 (Cth) rr.1.03(1), 16.05(2)(c), 21.02, 21.10,

Sch.1

Disability Discrimination Act 1992 (Cth) s.6
Sex Discrimination Act 1984 (Cth) ss.5, 7, 14.

Cases cited:

Gill v Karan Grewal Pty Ltd (No.2) [2019] FCCA 2025

Hinchliffe v University of Sydney [2004] FMCA 640
Holt v Wynter (2000) 49 NSWLR 128
Maxton & Maxton Pty Ltd v Port Village Accommodation Pty Ltd (No.2) [2012] FMCA 359
Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250
Stanley v Service to Youth Council Incorporated (2014) 225 FCR 317

Applicant:

RAJWINDER KAUR GILL

Respondent:

KARAN GREWAL PTY LTD ACN 604 162 576 T/A CURRY PALACE INDIAN RESTAURANT

File Number:

PEG 279 of 2017

Judgment of:

Judge Jarrett

Hearing date:

23 January 2020

Date of Last Submission:

23 January 2020

Delivered at:

Brisbane

Delivered on:

15 May 2020

REPRESENTATION

Solicitors for the Applicant:

Chapmans Barristers & Solicitors

Solicitors for the Respondent:

Friedman Lurie Singh & D'Angelo

ORDERS

In the statement of claim filed on 14 August, 2019:
(a)strike out paragraphs 28 – 30 with leave to replead;
(b)in paragraph 31 strike out the words “the common law duty and/or” and the words “and/or DDA statutory duty”.
The applicant file and serve an amended statement of claim no later than 4:00pm on 5 June, 2020;
If the applicant fails to comply with order 2 of these orders, then the application filed 14 July, 2017 shall stand dismissed pursuant to r.13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth);
The respondent file and serve a defence to the amended statement of claim no later than 4:00pm on 25 June, 2020;
The applicant pay the respondent’s costs of and incidental to:
(a)the application in a case filed on 12 April, 2019;
(b)the application in a case filed on 18 September, 2019; and
(c)the application in a case filed on 16 October, 2019
in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).
For the purposes of order 5 hereof:
(a)by 4:00pm on 5 June, 2020 the respondent must file and serve on the applicant a schedule setting out the items and amounts claimed pursuant to Schedule 1 of the Federal Circuit Court Rules 2001 in satisfaction of the costs orders herein;
(b)by 4:00pm on 25 June, 2020 the applicant must file and serve on the respondent a schedule setting out the items and amounts to which, she concedes, the respondent is entitled in satisfaction of the costs orders herein.
Otherwise the application in a case filed on 18 September, 2019 and the application in a case filed on 16 October,…

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.

Keep reading for free

Create a free CaseChat account to read Gill v Karan Grewal Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 1202
Decision Date: 15 May 2020

CaseChat Overview and Summary

In the matter of *Gill v Karan Grewal Pty Ltd*, heard before Judge Jarrett in the Supreme Court of Queensland, the applicant, Mr. Gill, sought an indulgence from the court by way of an extension of time to file his defence. The respondent, Karan Grewal Pty Ltd, had applied to strike out Mr. Gill's defence on the grounds that it was filed late and was therefore a nullity.

The central legal issues before the court were whether to grant an extension of time for the filing of the defence, and consequently, whether to permit the defence to stand, thereby preventing the respondent from obtaining default judgment. The court was required to consider the principles governing applications for extensions of time, particularly in circumstances where a party is seeking an indulgence.

Judge Jarrett reasoned that the power to grant an extension of time is a discretionary one, to be exercised judicially. The court considered the explanation for the delay in filing the defence, the prejudice to the respondent if an extension were granted, and the merits of the defence itself. His Honour noted that while the respondent had a right to proceed to default judgment, this right was not absolute and could be displaced by a proper exercise of discretion. The court ultimately found that the explanation for the delay was not entirely satisfactory, but that the defence appeared to have some merit and that the prejudice to the respondent could be adequately addressed by an award of costs.

Accordingly, Judge Jarrett granted the extension of time for the filing of the defence and dismissed the application to strike out the defence, on the condition that Mr. Gill pay the respondent's costs of the application.

Orders