Phillips v Australian Girls' Choir Pty Ltd & Anor - [2001] FMCA 109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHILLIPS v AUST. GIRLS’ CHOIR & ANOR.

[2001] FMCA 109

HUMAN RIGHTS – Extension of time – principles to be applied – arguable case – disability discrimination.

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Comcare v A’hearn (1993) 45 FCR 441
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Lucic v Nolan (1982) 45 ALR 411
Dix v Client Compensation Tribunal (1993) 1 VR 297
Doyle v Chief of Staff (1982) 42 ALR 283
Wedesweiller v Cole (1983) 47 ALR 528
Cooper v HREOC (1999) 93 FCR 481
Waters v Public Transport Corporation (1991) 173 CLR 349

Human Rights and Equal Opportunity Commission Act 1986 s 46 PO(2)

Disability Discrimination Act 1992 ss 5, 6, 23, 24, 122, 123
Administrative Decisions (Judicial Review) Act 1977 s 11

Applicant:

BRONWYN MICHELLE PHILLIPS

First Respondent:

AUSTRALIAN GIRLS’ CHOIR PTY LTD (ACN 053 469 891) (formerly known as CENTRAL AMBER PTY LTD)

Second Respondent:

KERRY HAYES PRODUCTIONS PTY LTD (ACN 071 638 080)

File No:

MZ689 of 2001

Delivered on:

28 November 2001

Delivered at:

Melbourne

Hearing Date:

29 October 2001

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr A McMonnies

Solicitors for the Applicant:

Allan McMonnies

Counsel for the First Respondent:

Mr P J Ginnane

Solicitors for the First Respondent:

Ebsworth & Ebsworth

Solicitor for the Second Respondent:

Ms K Dalton

Solicitors for the Second Respondent:

Herbert Geer & Rundle

ORDERS

The applicant be allowed, pursuant to s.46PO of the Human Rights & Equal Opportunity Commission Act, further time in which to make application against the respondents pursuant to the Disability Discrimination Act until 10 September 2001.
Costs reserved.
The application be listed for further directions on 10 December 2001 at 10 am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 689 of 2001

BRONWYN MICHELLE PHILLIPS

Applicant

And

AUSTRALIAN GIRLS’ CHOIR PTY LTD (ACN 053 469 891) (formerly known as CENTRAL AMBER PTY LTD)

First Respondent

And

KERRY HAYES PRODUCTIONS PTY LTD (ACN 071 638 080)

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by BRONWYN MICHELLE PHILLIPS (the applicant) who lodged a claim under the Human Rights & Equal Opportunities Commission Act 1986 (HREOC Act) alleging discrimination against her on the basis of her disability under the Disability Discrimination Act 1992 (DDA). The applicant has made her claim against the AUSTRALIAN GIRLS’ CHOIR PTY LTD (the first respondent) and KERRY HAYES PRODUCTIONS PTY LTD (the second respondent).
The applicant suffers from cerebral palsy and as a consequence uses a wheelchair. She is a member of the first respondent’s choir and claimed that she was the victim of discrimination arising out of arrangements made by the respondents at a performance of the Australian Girls’ Choir which was held at the Grand Final of the Australian Football League (the AFL), held at the Melbourne Cricket Ground (the MCG) on 25 September 1999.
The claim by the applicant was originally made for and on her behalf by her parents before the Human Rights & Equal Opportunity Commission (the Commission). The Commission issued a notice of termination dated 5 January 2001 pursuant to s.46PH(2) of the HREOC Act. The complaint was terminated pursuant to s.46PH(1)(i) of the HREOC Act on the grounds that the delegate of the President of the Commission was satisfied that there is no reasonable prospect of the matter being settled by conciliation.
In the notice of termination, the delegate by letter dated 5 January 2001 advised the applicant that if she wished to make an application to the Federal Court or the Federal Magistrates Service, then she would be required to make the application to the court within 28 days of the date of issue of the termination notice. The letter refers to “Federal Magistrates Service”, presumably because s 8 of the Federal Magistrates Act 1999 states that the Federal Magistrates Court may also be referred to as “The Federal Magistrates Service”. Fortunately it is not suggested that in the present case any confusion arose in relation to the need to make the application “to the court within 28 days of the date of issue of the termination notice” even though reference is made to the Federal Magistrates Service as well as the Federal Court. In any event there is no dispute that the termination notice was received by the applicant and that the period of 28 days has elapsed. The application before this court was filed on 10 September 2001 which is a considerable period after the expiration of the 28-day period referred to in s 46PO(2) of the HREOC Act which provides:
“(2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2) or within such further time as the court concerned allows.”
In the application, the applicant has indicated an intention to apply for an extension of time to lodge the application. In support of that application to extend time, the applicant initially relied upon an affidavit sworn by her on 20 August 2001. When the matter was listed before me on 22 October 2001, I decided to adjourn the further hearing of the application to extend time until 29 October 2001 to enable the applicant to file and serve any affidavits upon which she intended to rely and to re-serve the affidavit to which I have referred, together with exhibits. In addition, I directed the applicant should file an outline of submissions.
When the matter was listed before me on 29 October 2001, the applicant relied upon a further affidavit sworn 24 October 2001 and an outline of submissions. The first respondent provided the court with an outline of submissions and I heard submissions from all parties.

Extension of time – relevant principles

The discretion which is provided by s.46PO(2) of the HREOC Act is similar to the discretion provided to the court pursuant to s.11 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act). Both sections provide for a 28-day period of time within which to make an application and both also provide that the court shall exercise its discretion so that the application may be made “within such further time as the court concerned allows”. Whilst the language is slightly different in each section, it is clear in my view that both sections are similar and therefore it is appropriate to look at authorities dealing with s.11 of the ADJR Act in order to obtain some assistance in the interpretation of the court’s powers pursuant to s.46PO(2) of the HREOC Act.
It is relevant to consider that in the case of human rights applications there may well be different considerations which apply, bearing in mind the remedial and/or beneficial nature of the human rights legislation which unlike ADJR applications goes beyond the mere judicial review of an administrative decision and deals instead with fundamental human rights. In those matters before the Federal Magistrates Court claims are made pursuant to the Sex Discrimination Act, the DDA and the Racial Discrimination Act. In most of the claims made pursuant to that legislation, it is unlikely that an argument would be entertained that strict adherence to the time limit should be observed in order to assist the proper administration of government departments. Further, the wider issue of a degree of certainty in time limits for the public benefit may also have less weight in relation to claims made under the human rights legislation compared with those claims made for judicial review of administrative actions.
Apart from the fundamental difference in the nature of the application, it is still appropriate in my view to consider the principles which are applied by the courts in considering the exercise of discretion to allow a further period of time within which an applicant must lodge an application in ADJR cases. It is useful to refer to the often quoted decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at page 348 where the court notes that s.11 of the ADJR Act does not set out any criteria by reference to which “the court’s decision to extend time for an application for review under s.5 is to be exercised”. The same can be said of s.46PO of the HREOC Act. However it is helpful to rely upon the principles which have been distilled by Wilcox J in the Hunter Valley decision, although since that decision it is important to note that some modification needs to be made to those principles in the light of the more recent decision of the Full Court of the Federal Court in the matter of Comcare v A’hearn (1993) 45 FCR 441 (Ahearn’s case). In that case, the Full Court of the Federal Court upheld a decision of a primary judge who had dealt with an appeal from the AAT and who had upheld an appeal from the Tribunal which had refused an application for an extension of time within which to review a decision of Comcare. The Full Court stated:
“In our view the primary judge was correct in concluding that the reasons for decision reveal an error of law on the part of the Tribunal. The error was that the Tribunal considered that what is found was an inexcusable delay on the part of the solicitors could not constitute an acceptable explanation for the delay in making the application. We consider that this conclusion about the Tribunal’s reasoning follows inevitably from the passages to which we have already referred. The Tribunal found positively that the delay on the part of the solicitors was inexcusable and yet, after observing that there was an absence of any evidence, said: `Additionally, there was a total absence of `ANY ACCEPTABLE EXPLANATION FOR THE DELAY’’ (emphasis added). It emphasised this approach in the second last paragraph of its reasons, where it said:
`These proceedings were issued some seventeen months after the expiry of the time permitted and then by a firm of solicitors instructed by the Applicant well recognised and prominent in personally injuries litigation. NO ACCEPTABLE EXPLANATION WHATSOEVER was provided either by the Applicant or the solicitors for the delay (Emphasis added)’.
We consider, too, that the following paragraph of the Tribunal’s reasons is especially revealing of its approach:
`On the one hand, `delays by a solicitor are visited upon the client …’ (Duff v Freijah at 287) and on the other `although delays by solicitors are relevant … there is ample evidence of the Applicant’s total failure to take any step …’ (Lucic v Nolan at 417)’
A consistent thread thus revealed in the reasoning is that the Tribunal considered that delays by a solicitor were to be visited upon a client. Thus, despite the inexcusable delay on the solicitors’ part that the Tribunal found, it was able to say that there was, `no acceptable explanation whatsoever’ for the delay. This approach cannot stand in the light of modern authorities such as Jess v Scott (1986) 12 FCR 187; see also Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 32 FCR 148 at 156.
In our view, therefore, the primary judge was correct in concluding that the Tribunal’s reasons did reveal an error of law and he was correct in deciding that the matter ought to be remitted to the Tribunal for further consideration according to law.
We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential pre-condition: see Dix v Crimes Compensation Tribunal (1993) 1 VR 297 at 302 per Brooking J, with whom Fullagar and Tadgell JJ agreed; cf Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 and Maric v Comcare (1993) 40 FCR 244 at 247-249”.
In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
3.Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)
4.Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287)
5.The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)
6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
7.
Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983)

47 ALR 528).
In my view the principles applied to an extension of time in an ADJR application differ from those which apply in human rights applications to the extent that the issue of public administration is less important in a human rights application than it may be in an ADJR applications. This is for the obvious reason that ADJR application invariably involve consideration of government decisions and a degree of certainty about those decisions is desirable, not only for the applicant but for numerous other persons who may be affected by the decision. In the case of a human rights application, the claim of discrimination usually relates to the individual case even though there may be a wider impact on others who have been possibly exposed to the same or similar form of discrimination. The public interest issue which has been emphasised in those cases dealing with the extension of time in ADJR cases has less significance in human rights applications.
In considering the merits of the application, the applicant should demonstrate an arguable case. It is not necessary to demonstrate a strongly arguable case. If it can be demonstrated that the case is totally without merit, vexatious and/or an abuse of process, then an extension of time should not be granted as to do so would be to unnecessarily prolong the judicial process and take up valuable court time.

Submissions by applicant

The applicant relied upon two affidavits. The first affidavit sworn

20 August 2001 was deficient in that it failed to have annexed to it the exhibits. The second affidavit sworn 24 October 2001 added the exhibits to the first affidavit and also further material in support of the application for extension of time.
The applicant correctly conceded that there was no dispute that the application to this court was out of time. It seems to be further conceded that the applicant had received the notice of termination from the Commission on 6 January 2001. Upon receiving that notice the applicant then, through her parents, sought legal aid but was advised that it was unlikely the matter would be funded. An approach was apparently made to a legal firm who likewise were not able to assist in this application on what is described as a “no win/no pay basis”. The applicant claims that both she and her parents could not afford legal assistance. As I understand it, at the time when the alleged discrimination occurred, namely 25 September 1999, the applicant was then under the age of 18 years. In her affidavit material she refers to the fact that she turned 18 on 13 February 2001. Hence, by the time the applicant turned 18, the 28-day period provided in the legislation had expired.
The applicant asserts that after she turned 18 years of age, she decided that she wished to pursue the complaint. The Applicant claims that she is currently receiving a pension and has no assets. After failing to obtain legal aid and/or the assistance of a firm of solicitors, the matter apparently was left in abeyance until the applicant’s current solicitor was contacted. The first attendance at the office of the current solicitor occurred on 22 June 2001 and it is noted that the application before this court was filed on 10 September 2001. The applicant is unable to explain the delay between June and September 2001 and otherwise explains the earlier delay between February and June as being due to inability to obtain legal assistance and I infer impecuniosity and perhaps ignorance on the part of the applicant in relation to the matter. The applicant does claim that she was not aware of the time limit until she contacted her current solicitor in June 2001.
Relying on the brief summary of facts to which I have referred, it was submitted on behalf of the applicant that in the circumstances the explanation for delay should be accepted and the application granted with an extension of time until 10 September 2001.
It was submitted that there is no prejudice to the respondent and that in the circumstances there is a reasonable explanation for the delay. It was further submitted that the applicant has an arguable case and reliance is placed upon ss.5, 6, 23, 24, 122 and 123 of the DDA Act. The applicant has abandoned reliance upon s.27 of the Act.
It was submitted that the unlawful discrimination arose in relation to those provisions when the applicant was required to sit in her wheelchair at the boundary of the MCG whilst purportedly being part of the Australian Girls’ Choir performing in the 1999 Grand Final entertainment. Reference was made to ss.5 and 6 of the Act in the context of providing material to suggest either direct or indirect discrimination, though I think it was conceded during the course of submissions that those provisions are merely a gateway to the provisions relating to the prohibition of disability discrimination in Part 2 of the DDA. The reliance placed upon s.23 arose, it is claimed, as a result of the failure of the respondents to comply with that section and by inference reliance is presumably placed upon subsection 23(1)(b). Section 24 is relied upon specifically in relation to the claim that as a member of the Australian Girls’ Choir who paid a fee for the provision of training in choral music, the applicant was discriminated against in the provision of that service which included a public performance. By inference the breach of s.24(1)(b) occurred in the terms and conditions on which the respondents were prepared to provide that service or make facilities available to the applicant, or a breach of

s 24(1)(c) which provides for a claim to arise in circumstances where the manner in which the respondent provides the applicant with the services or makes facilities available to the applicant.

Sections 122 and 123 are relied upon for the liability of the respondents who in relation to the first of those sections could be said to have caused, instructed, induced, aided or permitted another person to do an act which is unlawful. As I understood it, this was relied upon in circumstances where it might be said that the owner and/or legal occupier of the MCG has been liable and that the respondents named in the application before this court were then consequentially liable arising out of the liability set out in s.122. Section 123 provides for liability of directors, servants and agents who help the respondents.

Respondents’ submissions

The respondents relied upon an affidavit in response sworn by JENNY CASS on 26 October 2001. In that affidavit, the correct name of the first respondent was clarified and there is no issue that it should be the “Australian Girls’ Choir Pty Ltd” (formerly known as Central Amber Pty Ltd). The respondent claimed that there had been a contractual arrangement between the first respondent and second respondent in relation to the 1999 AFL Grand Final. The applicant, it was confirmed, had made payment to the first respondent to be a member of the Australian Girls’ Choir and was in fact a duly paid-up and registered member at the time of the AFL Grand Final in 1999. In a contract between the first and second respondents, it was asserted that at all material times the first respondent was under the direction of the second respondent.
On behalf of the first respondent it was submitted that there is no reasonable explanation for delay in this matter and further that the applicant does not, in any event, have an arguable case. I was urged by the first respondent’s counsel to dismiss the application with an order that the applicant pay the first respondent’s costs.
Likewise, counsel for the second respondent relied upon the submission that there was no satisfactory explanation for delay and/or no arguable case and sought to have the application dismissed and an order for costs made.
Both respondents indicated that even if the application was granted, then the applicant should be ordered to pay each of the respondent’s costs.
For the first respondent, it was submitted it could not be liable under the DDA as none of the provisions relied upon by the applicant should apply to the first respondent. The first respondent claims that if there is any allegation arising out of s.24 in the circumstances, then that allegation should be directed to the second respondent and that the only provision which may apply to the first respondent would be s.122. In relation to that section, however, the first respondent submitted that it is not a section which should extend coverage to the first respondent. Reference was made to the decision of the Federal Court in Cooper v HREOC (1999) 93 FCR 481, where Madgwick J referred to the suggestion that for a person to be accountable as a `permitter’ under s.122 of the Act, the person must have legal power to prevent the discriminatory conduct or action engaged in by the primary discriminator. It was submitted that the first respondent did not have any such power in relation to the MCG and did not have power over the second respondent, but instead it was the second respondent that had legal control over the first respondent as a consequence of its contractual arrangements.
It was further submitted by the first respondent that there is no basis for a claim against it pursuant to s.23 of the DDA and the argument on behalf of the first respondent was simply that it did not use the premises but rather the individual girls comprising the choir used the premises. It was said that if discrimination was to arise under s.23 in the circumstances, there would be no opportunity for the first respondent to avail itself of the defence provided in subsection 2 as the first respondent could not, in any event, rely upon a ground that the discrimination is not unlawful if it could be established that the premises were so designed and constructed to be inaccessible or that alterations to the premises would impose unjustifiable hardship on the first respondent.
The submission in relation to s.24 of the DDA depended upon the interpretation and indeed identification of the “services” in question (see Waters v Public Transport Corporation (1991) 173 CLR 349 at 361). Reference was made to the provision of a choir to sing on Grand Final day and that this was not the provision of a service by the first respondent to the applicant and therefore could not constitute a basis upon which discrimination can be alleged pursuant to s.24 of the DDA. Specific reference was made to the provisions of s.24 and indeed the issue of the provision of the services and the terms and conditions on which the services were provided. It was asserted that the first respondent does not provide services of a choir for its members. Likewise it did not therefore provide the services of a choir to sing at the MCG on Grand Final day to its members.

Reasoning

In my view, applying the principles which I have summarised based upon in part the authority of the Federal Court in Hunter Valley and subsequent authorities including the decision of A’Hearn, it is open to this court to consider carefully the circumstances in which it might be said that a reasonable explanation – though not a pre-condition to the application – has been offered. It is appropriate to look at the chronology and the circumstances of the applicant at the time after the expiration of the 28-day period up to the date when the application was filed.
Due allowance must be made for the impecuniosity of the applicant, the fact that immediately prior to the expiration of the 28-day period she had been under the age of 18 years, that she is a disabled person, that on the material before me she is not familiar with legal process and that in the circumstances she was refused legal assistance. It is further open to the court, in my view, to regard the delay between June and September as being due entirely to inactivity on the part of the applicant’s solicitor and not the applicant herself in circumstances where it seems that the applicant’s current solicitor has acted in this matter without a fee and as an alternative to any formal provision of legal aid.
The courts are often faced with impecunious applicants who may or may not have a deserving claim, but through no fault of their own are unable to prepare or properly prepare an application, or indeed even lodge an application within time. It is most difficult in these circumstances to ensure that justice prevails in relation to all parties. There is a clear unfairness to respondents in circumstances of this kind who might reasonably conclude that a claim has been finalised upon a termination notice being issued by the Commission.
In the present case however, it is my view that given the age and financial circumstances of the applicant, that there is at least some explanation before this court which accounts for the delay between February and June 2001. There is some reason for delay between June and September which, though inexcusable, is attributable to the conduct of the applicant’s solicitor and the consequence of that conduct should not, in the present case, be visited upon the applicant. There is a general discretion in these matters and that discretion, particularly in human rights claims, should be exercised in a way in which reflects reasonably the beneficial and/or remedial nature of the legislation.
Hence it is reasonable to conclude that there is an explanation for delay which the court can accept in this matter, despite my reservations about the inadequacy of the affidavit material filed for and on behalf of the applicant.
The next and more significant issue is whether on the material before me there is an arguable case. It is not appropriate for this court on an application of this kind to examine in great detail the merits of the application. It is sufficient to determine on the available material whether there is an arguable case.
In my view both respondents are potentially liable under the provisions of the DDA for breaches of either s.23 or s.24. Pursuant to s.23 there is at least an arguable case that the first and/or second respondent did discriminate against the applicant in relation to the terms and conditions upon which the applicant was allowed access to or use of the MCG in the sense that other members of the Australian Girls’ Choir were congregated in a group, whilst the applicant was required to be placed in a position at or near the boundary which from the photographic evidence before me is clearly a considerable distance away from the choir. It is not unreasonable for a member of a choir to be positioned as part of the choir and therefore part of the group as distinct from being placed many metres away from and not part of the group. To that extent it is arguable that the applicant was not allowed access to that part of the premises where the rest of the choir had performed on the day of the AFL Grand Final.
It also seems to me that the respondents’ submission in relation to the issue of services is misconceived as it is arguable that by accepting the registration fee from the applicant, the respondent provides a service to the applicant, namely the provision of choral training. Choral training includes both the training at rehearsal and during live performances. To provide the service of that training at a live performance in circumstances where the provision of that service is on terms and conditions which involve the effective detachment of the applicant from the rest of the group who are performing does potentially constitute an arguable case that there has been a breach of s.24(b) of the DDA. That discrimination occurs both directly and indirectly in the sense that it may be argued that the applicant, as an aggrieved person, could suggest that the respondents have treated her less favourably in the circumstances than a person would be treated who does not have a disability. It is particularly significant to note that the activity which is the subject of the training is a choir which is obviously a group activity. An important part of that activity would be, in my view, to present oneself as part of the group, that is as part of the choir providing entertainment at a public venue. I am satisfied that the provision of services by the first respondent and the organisation of the event by the second respondent for different reasons may involve an arguable case that each have committed an act of unlawful discrimination in breach of the provisions of the DDA to which I have referred.
I do not have a concluded view about the ultimate outcome of this matter as it is inappropriate to do so on an application for extension of time.
It is sufficient, however, for the purpose of this application that I have reached a conclusion that the application is arguable.
In the circumstances it is appropriate to consider the order that should be made in relation to allowing further time and also the issue of costs. I propose that in exercising my discretion to order that the applicant be allowed until 10 September 2001 to file an application against the respondents alleging discrimination pursuant to the DDA.
In relation to the question of costs, I am satisfied that in an application for extension of time it is not appropriate to award costs in favour of the applicant. The more difficult question in the present case is whether I should accede to the demand by the respondents that in the event that I allow the extension of time, that I should order the applicant to pay the respondents’ costs. I have given this matter considerable thought and conclude that to make an order for costs against the applicant would be a significant impediment to her ability to pursue the claim. On the evidence before me, it would seem that the applicant is the recipient of a pension and has no assets. To make an order at this early stage of the proceedings for costs would be unfair and inappropriate. Therefore in the exercise of my discretion, I decline to make an order for costs other than that costs will be reserved.
Accordingly the orders I propose making are:
(1)The applicant be allowed, pursuant to s.46PO of the Human Rights & Equal Opportunity Commission Act, further time in which to make application against the respondents pursuant to the Disability Discrimination Act until 10 September 2001.
(2)Costs reserved.
(3)The application be listed for further directions on 10 December 2001 at 10 am.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 28 November 2001