FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCPAUL v CPC ENGINEERING PTY LTD | [2013] FMCA 71 |
| INDUSTRIAL LAW – General protections claim – dismissal in alleged contravention of general protection. |
| PRACTICE AND PROCEDURE – Extension of time in which to file general protections claim – whether explanation for delay – whether representative error – prejudice by effluxion of time and entitlement to consider matter at an end – merits of the substantive application. |
| Fair Work Act 2009 (Cth), ss.340, 369, 371, 570 Occupational Safety and Health Act 1984 (WA), ss.19, 43(1), 52(3) |
| Justice Ipp “Judicial Intervention in the Trial Process” (1995) 69 ALJ 365 Justice Wilson “Expert Evidence, Self-Represented Litigants and The Evidence of Children” (Address to Queensland Industrial Relations Commission, 2 September 2005) |
| Applicant: | DAVID JOHN MCPAUL |
| Respondent: | CPC ENGINEERING PTY LTD |
| File Number: | PEG 275 of 2012 |
| Judgment of: | Lucev FM |
| Hearing date: | 12 February 2013 |
| Date of Last Submission: | 12 February 2013 |
| Delivered at: | Perth |
| Delivered on: | 15 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Petherick |
| Solicitors for the Applicant: | Trent Petherick Lawyers |
| Counsel for the Respondent: | Mr T French |
| Solicitors for the Respondent: | Clyde & Co |
ORDERS
That the application for an extension of time in which to file the application be dismissed.
That the application be dismissed.
That any application for costs under s.570 of the Fair Work Act 2009 (Cth) be made by way of written submission within 7…
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- AGLC
- MCPAUL v CPC ENGINEERING PTY LTD [2013] FMCA 71
- Case
- [2013] FMCA 71
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether McPaul was entitled to an extension of time to file the application and, if the application was to proceed, whether it should be dismissed. The court considered whether McPaul had a sufficient basis for seeking an extension under the applicable procedural rules and whether the application met the criteria for being heard despite the procedural shortcomings.
The court found that McPaul did not have a sufficient basis to warrant an extension of time. The application was not filed within the requisite timeframe, and there were no exceptional circumstances that would justify an extension. Consequently, the application for an extension of time was dismissed. Additionally, the court found that the application itself was not made within the allowable time frame and was therefore also dismissed. The court then directed that any application for costs under section 570 of the Fair Work Act 2009 (Cth) be submitted in writing, with responses to follow, and that the application for costs be determined based on the written submissions.
The final orders included the dismissal of the application for an extension of time, the dismissal of the application, and a directive that any costs application be submitted and determined on the basis of written submissions.
Orders
Orders of the court
1.
That the application for an extension of time in which to file the application be dismissed.
2.
That the application be dismissed.
3.
That any application for costs under s.570 of the Fair Work Act 2009 (Cth) be made by way of written submission within 7 days, with any response to such application also to be made by way of written submission to be filed within a further 7 days, with the costs application to be determined on the written submissions filed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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