Kennedy v Secretary, Department of Industry

In the case of Kennedy v Secretary, Department of Industry, the applicant, Mr Kennedy, sought an extension of time to lodge an appeal to the Full Bench of the Fair Work Commission. The Secretary, Department of Industry, opposed the application, arguing that the delay in filing the appeal was not due to exceptional circumstances. The matter was brought before the court for determination under section 39B of the Judiciary Act 1903 (Cth). The court had to decide whether the Full Bench of the Fair Work Commission had erred in refusing Mr Kennedy's application for an extension of time to file his appeal.

The court examined the reasons provided by Mr Kennedy for the delay in filing his appeal. The court noted that Mr Kennedy had been in a position to file the appeal by a certain date, and that even if the court were to accept that his reasons for not filing before that date constituted exceptional circumstances, it could not accept that the further delay amounted to exceptional circumstances. The court found that the delay was attributable to decisions made by Mr Kennedy about the manner and timing of the applications he wished to make to the Commission, and that there was nothing exceptional about the circumstances of those decisions or the context in which they were taken by Mr Kennedy. The court concluded that there were no exceptional circumstances that would warrant an extension of time to file the appeal.

The court dismissed Mr Kennedy's application for an extension of time to file his appeal to the Full Bench of the Fair Work Commission. The court ordered that any application for costs be made within 14 days supported by short written submissions, and that any submissions resisting an order for costs be filed within a further 14 days. The court also ordered that any application for costs be dealt with on the papers without an oral hearing.