PRACTICE AND PROCEDURE – application for enlargement of time to file notice of appeal – no ground of appeal identified in application – applicant issues subpoena to obtain further evidence to support application – documents required for production subject to claims of confidentiality – application to have subpoena set aside – evidence sought to overturn credibility findings of primary judge – whether subpoena amounts to fishing and abuse of process – whether court on appeal from Federal Magistrate should allow further evidence
HUMAN RIGHTS – Sex Discrimination Act 1984 (Cth) – sexual harassment – harassment of one employee by another employee established by Federal Magistrate
[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.
Continue reading Mandic v Phillis
Sign in free to access the full text
Details
AGLC
Mandic v Phillis [2005] FCA 1279
Case
[2005] FCA 1279
Decision Date
CaseChat Overview and Summary
The case of Mandic v Phillis involved a legal dispute between Mr Mandic and Ms Phillis, with the court considering the enforcement of a subpoena issued by RailCorp. The primary concern was the potential breach of confidence, implications for public safety, and consequences for the commercial interests of the Institute, as well as Ms Phillis' privacy. The court had to decide whether the enforcement of the subpoena, particularly its presently material aspect, would constitute an abuse of the court’s process. Given the speculative basis of Mr Mandic’s subpoena, its tangential relevance, and the stage of the litigation, the court found that enforcement would result in an abuse of process.
The court's reasoning focused on the cumulative factors of the subpoena's speculative basis, its peripheral relevance, and the current litigation stage, leading to the conclusion that enforcing the subpoena would indeed involve an abuse of the court’s process. Consequently, the court set aside the disputed part of the RailCorp subpoena. Additionally, the court considered Mr Mandic's application for an enlargement of time to file and serve a notice of appeal, emphasizing that the power to grant such an extension is discretionary and must be exercised only for special reasons that justify a departure from the general rule. The court dismissed Mr Mandic's application for an extension of time and ordered him to pay the respondent's costs.
Orders
Orders of the court
1. The application for an enlargement of time within which to file and serve a notice of appeal be dismissed.
2. The applicant pay the costs of the respondent of the application.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
CONTI J
In any event, enforcement of the disputed aspect of the RailCorp subpoena, would have implications, if not also consequences, in terms of breach of confidence, for public safety and conceivably for the commercial interests of the Institute, and also for the potentially legitimate interests of Ms Phillis’ privacy, being implications and consequences which would enter the balancing exercises thereby falling for consideration. I acknowledge that were it not for the at least speculative basis for Mr Mandic’s resort to use of the subpoena process, the barely tangential relevance of the disputed material likely to be produced therefrom, and the present stage of the relevant litigation involving Mr Mandic, I may well not have considered breach of confidence to be a sufficient factor for setting aside the RailCorp subpoena to the extent in controversy. Weighing those factors cumulatively requires however a different outcome and thus adverse to Mr Mandic’s interest. I find that the disputed part of the RailCorp subpoena, which is its presently material aspect, if enforced, would involve an abuse of the Court’s process, and for that reason it must be set it aside.Conclusions on Mr Mandic’s application for an enlargement of time in which to file and serve a notice of appeal Order 52 r 15(2) provides that the Court may grant leave to file a notice of appeal at any time for special reasons. Exercise of the power to grant an extension of time in which to file a notice of appeal is inherently discretionary in nature. The meaning of the expression special reasons was considered by the Full Federal Court in Jess v Scott (1986) 12 FCR 187, where at 195 of Lockhart, Sheppard and Burchett JJ’s joint reasons for judgment it was said as follows:‘It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of 21 days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is 21 days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.’ The power of a judge of the High Court to grant the equivalent dispensation from the rules of that Court was considered in Gallo v Dawson (No 2) (1992) 109 ALR 319, where at 480 the Court endorsed the following statement of principle enunciated by McHugh J at first instance: ‘The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties…This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for an extension of time…When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal…’ (My emphasis appears in non-italics).