Linda Merhi v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human Services)

The matter before the court was an application for permission to appeal and an appeal against the decision of Deputy President Cross in a matter involving Linda Merhi and the Commonwealth of Australia, represented by Services Australia. The original dispute was an unfair dismissal application that was lodged out of time by Ms Merhi. The case was considered by Deputy President Cross, who dismissed the application, finding that no exceptional circumstances had been established to justify the late filing. Ms Merhi sought to appeal this decision to the Full Court, arguing that exceptional circumstances did exist and that the dismissal of her application was in error.

The court was required to decide whether the appeal should be permitted and, if so, whether there was an arguable case of appealable error in the original decision. This involved assessing the reasons for the delay in filing the application, the incarceration of Ms Merhi, and whether these constituted exceptional circumstances. The court also had to consider whether the public interest required the appeal to proceed.

In considering the application, the court found that Ms Merhi had not established that there were exceptional circumstances justifying the late filing of her application. The lengthy delay, coupled with the reasons provided for the delay, did not meet the threshold for exceptional circumstances. The court noted that Ms Merhi had not shown how the delay had prejudiced the respondent, nor had she provided any explanation that could be considered exceptional. Additionally, the incarceration of Ms Merhi did not by itself constitute exceptional circumstances. The court held that the dismissal of the application by Deputy President Cross was correct and that there was no arguable case of appealable error. Consequently, the application for permission to appeal was dismissed, and the appeal itself was not entertained.

The final orders of the court were that the application for permission to appeal was dismissed, the appeal was dismissed, and Ms Merhi was ordered to pay the costs of the application.