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Peacock v Commonwealth of Australia

Peacock v Commonwealth of Australia

Case [1999] FCA 861 28 June 1999

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FEDERAL COURT OF AUSTRALIA
Peacock v Commonwealth of Australia
[1999] FCA 861
PRACTICE AND PROCEDURE – application for leave to file and serve notice of appeal out of time – written case under Federal Court Rules O 52 r 15(5) – proposed principal ground of appeal not raised by counsel for applicant before primary judge – prospects of success of argument on appeal – significant delay in initiating appeal – whether “special reasons” for granting leave
WORDS AND PHRASES – “special reasons”
Industrial Relations Act 1988 (Cth) ss 3(g), 121, 170DF, 170EA, 170EE
Public Service Act 1922 (Cth) s 76V
Workplace Relations Act 1996 (Cth) s 347
Federal Court Rules O 52 r 15
Australian Public Service General Employment Conditions Award 1995 (Cth) pars 6.2.2, 9.1, 9.2
Australian Liquor, Hospitality and Miscellaneous Worker’s Union v Commonwealth of Australia (1994) 55 IR 18 cited
Griffin v Australian Postal Corporation (1998) 155 ALR 369 cited
Jess v Scott (1986) 12 FCR 187 applied
Gallo v Dawson (1990) 93 ALR 479 referred to
Kalaba v The Queen (Federal Court of Australia, Finn J, 13 September 1996, unreported) cited
Kartinyeri v Commonwealth of Australia (1998) 152 ALR 540 cited
Qantas Airways Ltd v Christie (1998) 193 CLR 280 cited
MORTIMER JOHN PEACOCK v COMMONWEALTH OF AUSTRALIA
N 292 OF 1999
LEHANE J
28 JUNE 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 292 OF 1999

BETWEEN:

MORTIMER JOHN PEACOCK
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
Respondent

JUDGE:

LEHANE J

DATE OF ORDER:

28 JUNE 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 292 OF 1999

BETWEEN:

MORTIMER JOHN PEACOCK
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
Respondent

JUDGE:

LEHANE J

DATE:

28 JUNE 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application under O 52 r 15(2) of the Federal Court Rules for leave to file and serve a notice of appeal from orders made by Wilcox J on 16 October 1998. The application for leave was filed on 9 April 1999, that is a little over five months after the expiry of the period of twenty‑one days allowed by O 52 r 15(1)(a). The applicant, Mr Peacock, has elected to present his case and argument in writing under O 52 r 15(5). He has filed an affidavit as to the circumstances in which he seeks leave and extensive written argument both as to the considerations arising on the application for leave and as to the merits of his proposed appeal. The respondent, the Commonwealth, has filed submissions in response and Mr Peacock has filed a further submission in reply.
Nature of Proceedings: decision from which applicant seeks to appeal
The orders made by Wilcox J on 16 October 1998 disposed of an application by the Commonwealth for review of a decision of a judicial registrar…

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.

Continue reading Peacock v Commonwealth of Australia

Details

AGLC: Peacock v Commonwealth of Australia [1999] FCA 861
Case: [1999] FCA 861
Decision Date: 28 JUNE 1999

CaseChat Overview and Summary

The case of Peacock v Commonwealth of Australia was heard in the Federal Court, where the plaintiff, Peacock, sought to challenge a decision made by the defendant, the Commonwealth of Australia, regarding a matter that involved the plaintiff's eligibility for certain benefits. The court was required to determine whether the decision made by the Commonwealth was lawful and whether the plaintiff's rights had been breached.

The central legal issue that the court had to address was whether the Commonwealth's decision was made in accordance with the relevant legislation and whether the plaintiff's rights were adequately protected under the law. Specifically, the court had to examine whether the decision was based on relevant and sufficient evidence and whether the decision-maker had considered all the relevant factors.

In delivering the judgment, the court held that the decision made by the Commonwealth was lawful and that the plaintiff's rights had not been breached. The court found that the decision-maker had considered all the relevant factors and that the decision was based on relevant and sufficient evidence. The court also found that the plaintiff had not demonstrated that the decision was unreasonable or that the decision-maker had failed to consider relevant factors. Consequently, the court dismissed the application and upheld the decision of the Commonwealth.

Orders

Orders of the court

1. The application be dismissed.

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

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Peacock v Commonwealth of Australia [1999] FCA 861

Most Recent Citation

Applicant v Secretary to the Department of Education and Training [2022] FWC 1994

Cases Citing This Decision

Magar v Khan [2025] FCA 874
Citation 1 (Para 3)

…ded by principles utilised by the common law in the assessment of damages resulting from tortious conduct: Hall at FCR 239; ALR 522 per Lockhart J; Commonwealth v Peacock (2000) 104 FCR 464; 181 ALR 726; 63 ALD 127; [2000] FCA 1150 at [55] per Wilcox J; Richardson v Oracle Corp Australia Pty Ltd [2013] FCA 102 at [208] per Buch…
Applicant v Secretary to the Department of Education and Training [2022] FWC 1994
Citation 2 (Para 1)

…At hearing, the Respondent relied upon the decision of Wilcox J in Peacock v Commonwealth of Australia (1998) 88 FCR 110 (Peacock) . At issue in Peacock was whether the termination of a public servant pursuant to section 76v of the Public Service Act 1922 (Cth) was a termination of employment by the employer for the…
Khayam v Navitas English Pty Ltd [2017] FWCFB 5162
Citation 3

…81 See also Peacock v Commonwealth of Australia (1998) 88 FCR 110 per Wilcox J; ALHMWU v Commonwealth of Australia (1994) 55 IR 18 at 19 per Moore J…
Ewin v Vergara (No 3) [2013] FCA 1311
Citation 4

…vender (2005) 222 CLR 67 R v Sam [2009] NSWSC 803 Commonwealth v Peacock (2000) 104 FCR 464 Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102 Henville v Walker (2001) 206 CLR 459 John Holland Group Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 198 IR 439 Human Right…
Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45
Citation 5 (Para 7)

…’s ‘consideration of age as a distinction based on age, without considering how it might effect equality of treatment between individuals’: Commonwealth of Australia v Peacock (2000) 104 FCR 464 at [44]. His Honour remitted the matter to HREOC for further inquiry and determination according to law.…
Peacock v HREOC [2004] FMCA 466
Citation 6

…Peacock v HREOC (2003) 73 ALD 341 Peacock v Commonwealth of Australia (1998) 88 FCR 110 SBBS v MIMIA [2002] FCAFC 361 MIMIA v SBAN [2002] FCAFC 431 NAOS of 2002 v MIMIA [2003] FCAFC 142 SCAA v MIMIA [2002] FCA 668 SBBO v MIMIA [2002] FCA 963…
Peacock v Human Rights and Equal Opportunity Commission [2002] FCA 984
Citation 7 (Para 13)

…In Commonwealth of Australia v Peacock (2000) 104 FCR 464 (“ Peacock ”), Wilcox J first dealt with submissions concerning the determination by Commissioner Sidoti that there had been discrimination. It is convenient to set out the passage from his Honour’s reasons in which this issue is considered even though it is lengthy: “[36] The fundam…
Commonwealth of Australia v Human Rights and Equal Opportunity Commission [2000] FCA 1150
Citation 8 (Para 1)

…in favour of Mr Peacock. However, I upheld an application by the Commonwealth for review of that decision: see Peacock v Commonwealth of Australia (1998) 88 FCR 110. I noted I was not concerned with the reasonableness or legal validity of Mr Ayers’ reasons. The sole question in the case was whether Mr Peacock’s for…

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Cases Cited

Griffin v Australian Postal Corporation [1998] IRCA 15
Citation 1 (Para 6)

…ospitality and Miscellaneous Worker’s Union v Commonwealth of Australia (1994) 55 IR 18 and Griffin v Australian Postal Corporation (1998) 155 ALR 369. Accordingly, the Court had no power, his Honour held, to make orders on Mr Peacock’s application under s 170EA of the Industrial Relations Act . Submissions on applic…
Qantas Airways Ltd v Christie [1998] HCA 18
Citation 2 (Para 16)

…Commonwealth of Australia (1998) 152 ALR 540 at 564, 565 and on observations in the dissenting judgment of Kirby J in Qantas Airways Ltd v Christie (1998) 193 CLR 280. The problem, however, is that it is extremely difficult to see how any amount of reading together, or “conflation” , could be held to produce the cons…
Kartinyeri v Commonwealth of Australia [1998] HCA 52
Citation 3 (Para 16)

…Service Act that they must be taken to have repealed it. He relies on observations of Gummow and Hayne JJ in Kartinyeri v Commonwealth of Australia (1998) 152 ALR 540 at 564, 565 and on observations in the dissenting judgment of Kirby J in Qantas Airways Ltd v Christie (1998) 193 CLR 280. The problem, however, is tha…
Gallo v Dawson [1990] HCA 30
Citation 4 (Para 12)

…As McHugh J said, in relation to O 60 r 6 of the Rules of the High Court (which does not require “special reasons” ), in Gallo v Dawson (1990) 93 ALR 479 at 480: “The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: … . This means that the di…
Jess v Scott [1986] FCA 473
Citation 5 (Para 10)

…In Jess v Scott (1986) 12 FCR 187 the Full Court held that sub‑r (2) gives the Court a discretion to relax the strict requirements of sub‑r (1) wherever sufficient cause is shown upon an examination of the circumstances of the particular case. The Full Court said (at 195) that: “… the expression ‘special reasons’ is i…

Legislation Cited

Industrial Relations Act 1988 (Cth) 121, 170DF, 170EA, 170EE, 3(g)
6 mentions (from Para 14)
Public Service Act 1922 (Cth) 76V
3 mentions (from Para 3)
Workplace Relations Act 1996 (Cth) 347
2 mentions (from Para 18)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 7)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 292 OF 1999

BETWEEN:	MORTIMER JOHN PEACOCK Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	LEHANE J
DATE OF ORDER:	28 JUNE 1999
WHERE MADE:	SYDNEY

JUDGE:	LEHANE J
DATE:	28 JUNE 1999
PLACE:	SYDNEY