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

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v KARAN GREWAL PTY LTD (No.2)

[2019] FCCA 2025

Catchwords:
PRACTICE AND PROCEDURE – Application for an extension of time to file a statement of claim – application for dismissal because of non-compliance – extension of time granted – springing order made.

Legislation:

Australian Human Rights Commission Act 1986 (Cth)
Disability Discrimination Act 1992 (Cth), ss.5, 6, 11
Federal Circuit Court of Australia Act 1999 (Cth), s.15

Federal Circuit Court Rules 2001 (Cth), rr.1.05, 3.05, 13.03A, 13.03B, 16.05

Federal Court Rules 2011 (Cth), r.1.32
Migration Act 1958 (Cth), s.477
Sex Discrimination Act 1984 (Cth)

Cases cited:

Gill v Karan Grewal Pty Ltd (Trading as Curry Palace Indian Restaurant) [2018] FCCA 3549

McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211
Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305
Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88

Applicant:

RAJWINDER KAUR GILL

Respondent:

KARAN GREWAL PTY LTD
(ACN 604 162 576) TRADING AS CURRY PALACE INDIAN RESTAURANT

File Number:

PEG 279 of 2017

Judgment of:

Judge Kendall

Hearing date:

23 July 2019

Date of Last Submission:

23 July 2019

Delivered at:

Perth

Delivered on:

26 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr D Singh

Solicitors for the Applicant:

Friedman Lurie Singh & D’Angelo

Counsel for the Respondent:

Mr R Singh

Solicitors for the Respondent:

Chapmans Barristers & Solicitors

ORDERS

The applicant file and serve a statement of claim by 16 August 2019.
If the applicant fails to comply with Order 1 of these orders, then the application filed 14 July 2017 be dismissed under r.13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The application in a case filed 21 January 2019 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 279 of 2017

RAJWINDER KAUR GILL

Applicant

And

KARAN GREWAL PTY LTD (ACN 604 162 576)
TRADING AS CURRY PALACE INDIAN RESTAURANT

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are two interlocutory applications as follows:
a)an application for dismissal of the substantive proceeding pursuant to rr.13.03A and 13.03B of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) as filed by the respondent, Karan Grewal Pty Ltd ACN 604 162 576 trading as Curry Palace Indian Restaurant, on 21 January 2019 (the “Dismissal Application”); and
b)an application for an extension of time in which to comply with orders made by a judge of this Court on 7 December 2018 as filed by the applicant, Rajwinder Kaur Gill, on 12 April 2019 (the “Extension Application”).
The Court notes that on 7 December 2018, Judge Lucev delivered reasons for judgment in Gill v Karan Grewal Pty Ltd (Trading as Curry Palace Indian Restaurant) [2018] FCCA 3549 (“Gill No.1”). The factual and procedural background to the substantive application are summarised in His Honour’s reasons at [2]-[7]. Those paragraphs, and the reasons generally, should be read in order to understand the context giving rise to this matter.

Background to the…

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.

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Details

Case: [2019] FCCA 2025
Decision Date: 26 July 2019

CaseChat Overview and Summary

In *Gill v Karan Grewal Pty Ltd (No.2)*, the applicant, Mr. Gill, sought an extension of time to file a statement of claim, while the respondent, Karan Grewal Pty Ltd, applied for dismissal of the proceedings due to Mr. Gill's non-compliance with court orders. The matter came before Judge Kendall in the District Court of New South Wales.

The central legal issues before the court were whether Mr. Gill should be granted an extension of time to file his statement of claim, and consequently, whether the proceedings should be dismissed for failure to comply with previous orders. The court was required to consider the principles governing applications for extensions of time and the consequences of non-compliance with court directions.

Judge Kendall granted the extension of time to Mr. Gill, thereby refusing the application for dismissal. In reaching this decision, the court applied the principles that generally favour the determination of disputes on their merits, particularly where the delay is not inordinate and the respondent has not suffered significant prejudice. The court also made a "springing order," which means the extension of time was conditional upon Mr. Gill filing the statement of claim by a specified date, failing which the proceedings would be automatically dismissed.

Orders