FEDERAL COURT OF AUSTRALIA
Praljak v State of Queensland [2024] FCA 467
Applications for extension of time and leave to appeal from: Praljak v State of Queensland [2022] FCA 1437
Praljak v Department of Defence [2021] FCA 1668
Praljak v Commonwealth of Australia (Federal Court of Australia) [2022] FCA 1438
File numbers: VID 40 of 2024
VID 41 of 2024
VID 42 of 2024
VID 43 of 2024Judgment of: MORTIMER CJ Date of judgment: 6 May 2024 Catchwords: PRACTICE AND PROCEDURE – applications for extensions of time in which to seek leave to appeal – applications relate to four proceedings in which the applicant was refused leave to bring proceedings under s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) – applications for leave to appeal made between 13 months and 23 months out of time – materials disclose no explanation for delay – applications for leave to appeal have no prospects of success – applications for extensions of time refused – applications for leave to appeal would also have been refused Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO(3A)
Disability Discrimination Act 1992 (Cth)
Federal Court of Australia Act 1976 (Cth) s 43
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Federal Court Rules 2011 (Cth)
Magistrates Act 1991 (Qld) s 51
Cases cited: Cement AustraliaPty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261
Dietrich v The Queen [1992] HCA 57; 177 CLR 292
Gallo v Dawson [1990] HCA 30; 64 ALJR 458
Praljak v Bond University Limited [2022] QCA 213
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 64 Date of last submissions: 5 April 2024 Date of hearing: Determined on the papers For VID 40 of 2024: Counsel for the Applicant: The applicant represented himself Solicitor for the Respondent: Crown Law For VID 41 of 2024: Counsel for the Applicant: The applicant represented himself Counsel for the First and Second Respondents: Mr J A S Ford Solicitor for the First and Second Respondents: Norton Rose Fulbright For VID 42 of 2024: Counsel for the Applicant: The applicant represented himself Counsel for the First Respondent: Ms P Bindon Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs For VID 43 of 2024: Counsel for the Applicant: The applicant represented himself Counsel for the Respondent: Mr S J Webster Solicitor for the Respondent: Minter Ellison ORDERS
VID 40 of 2024 BETWEEN: ADRIAN PRALJAK
Applicant
AND: STATE OF QUEENSLAND
Respondent
ORDER MADE BY:
MORTIMER CJ
DATE OF ORDER:
6 MAY 2024
THE COURT ORDERS THAT:
1.The application in proceeding VID 40…
Continue reading Praljak v State of Queensland
Sign in free to access the full text
Details
- AGLC
- Praljak v State of Queensland [2024] FCA 467
- Case
- [2024] FCA 467
- Decision Date
CaseChat Overview and Summary
In Praljak v State of Queensland, the applicant sought extensions of time to appeal decisions related to proceedings under section 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth). The applications for extensions were filed between 13 and 23 months after the time limits had expired, and the applicant provided no explanation for the delay. The court had to decide whether to grant extensions of time for the applicant to seek leave to appeal and whether the refusal to grant leave to appeal could itself be appealed.
The court considered the legal principles governing extensions of time for appeals, emphasising that rules fixing time should not become instruments of injustice. However, the court found no explanation for the delay in filing the appeals, and the applications for leave to appeal had no realistic prospects of success. The court also noted that the applications were not the appropriate occasion to reconsider the decision in Cement Australia Pty Ltd v ACCC regarding the appealability of decisions under section 46PO(3A) of the AHRC Act.
Consequently, the court refused the applications for extensions of time. The court ordered that the application in proceeding VID 43 of 2024 for an extension of time to file an application for leave to appeal from the orders of McEvoy J on 30 November 2022 be refused and that the applicant pay the respondent’s costs of and incidental to the proceeding.
The court considered the legal principles governing extensions of time for appeals, emphasising that rules fixing time should not become instruments of injustice. However, the court found no explanation for the delay in filing the appeals, and the applications for leave to appeal had no realistic prospects of success. The court also noted that the applications were not the appropriate occasion to reconsider the decision in Cement Australia Pty Ltd v ACCC regarding the appealability of decisions under section 46PO(3A) of the AHRC Act.
Consequently, the court refused the applications for extensions of time. The court ordered that the application in proceeding VID 43 of 2024 for an extension of time to file an application for leave to appeal from the orders of McEvoy J on 30 November 2022 be refused and that the applicant pay the respondent’s costs of and incidental to the proceeding.
Orders
Orders of the court
1. The application in proceeding VID 43 of 2024 for an extension of time in which to file an application for leave to appeal from the orders of McEvoy J on 30 November 2022 be refused.
2. The applicant pay the respondent’s costs of and incidental to the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
I note also in the respondents’ submissions in the Department of Defence application, at [2], there is a submission concerning whether a refusal to grant leave under s 46PO(3A) of the AHRC Act can be subject to an appeal at all:Further, the decision of Logan J below (Decision) determined an application for leave to institute proceedings in the Court. It appears to be of the kind described in section 20(3)(a) of the Federal Court of Australia Act 1976 (FCAA). On a plain reading of FCAA s.24(1AA)(a) there ought be no right of appeal. However, this Court is bound by Cement Australia Pty Ltd v ACCC (infra) not to follow that approach. Respectfully, Cement Australia Pty Ltd v ACCC was wrongly decided and stands to be re-examined. If correct, this submission would apply to the other three proceedings as well. With respect, the submission has force. However, cf Weir, where it appears no point was taken and the application for leave (and appeal) was allowed. But these applications are not the appropriate occasion in which to determine if Cement AustraliaPty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 was wrongly decided. Again, I proceed favourably to Mr Praljak that he is not precluded by s 24(1AA)(a) from seeking leave to appeal, and seeking an extension of time in which to do so. Rules fixing time should not become instruments of injustice: Gallo v Dawson [1990] HCA 30; 64 ALJR 458, 459 (McHugh J). Of course, injustice can operate differentially on different parties. The concept is not relevant only to a moving party on an extension of time application. A respondent may suffer injustice (the concept of prejudice is often used) through the grant of an extension of time. Injustice may include the proposition that an extension of time fails to accord sufficient weight to the principle of finality and certainty in orders made by courts, which is an important aspect of the rule of law. Whether there is injustice is to be assessed objectively by the Court in the exercise of its discretion. An indicator of injustice may arise through explanations of the reason for the delay in filing. Another indicator of injustice will be the prospects of success the proposed application or appeal might have; the stronger the prospects of success, the more this might objectively suggest an injustice if time is not extended. The weaker the prospects of success, the more confident a court can be that adherence to time limits works no injustice. As I said in Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [26]:Unless there are strong countervailing circumstances, it is unlikely to facilitate the just resolution of a dispute to allow a matter, not commenced within the time the law requires, to proceed to a full hearing on a claim that has no realistic prospects of success. The material filed in each in each proceeding does not disclose any explanation for the delay in filing the applications for leave to appeal, and does not attempt to address the well-established criteria for an extension of time. Mr Praljak describes himself in his affidavit material as a “Australian and Global Lawyer and Attorney at Law”, and therefore it is a reasonable inference that he was capable of discovering, if he did not already know, that he needed to provide an explanation for not filing his application with time. Apart from anything else, the form he has used, and filled out in extensive detail by reference to a wide range of arguments and factual and legal assertions, states that an application must provide an affidavit stating: why the application for leave to appeal was not filed within time
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.