FEDERAL COURT OF AUSTRALIA

Penhall-Jones v State of NSW (Ministry of Transport) [2008] FCA 1122

Disability Discrimination Act 1992 (Cth) s 42

Federal Court Rules O 52 r 15

Thompson v IGT (Australia) Pty Ltd [2008] FCA 994

WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399  

MARGARET PENHALL-JONES v STATE OF NEW SOUTH WALES (MINISTRY OF TRANSPORT)

NSD 1129 OF 2008

BUCHANAN J

31 JULY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant be granted an extension of time, until 18 July 2008, in which to file an appeal against the decision of the Federal Magistrates Court of Australia in Penhall-Jones v State of NSW (No 2) [2008] FMCA 832.

2.                  Costs of the application be costs in the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BUCHANAN J:

1                     This application for an extension of time in which to appeal was filed three days after the time limited by O 52 r 15 of the Federal Court Rules in which Ms Penhall-Jones might have appealed as of right against a decision by the Federal Magistrates Court of Australia (‘the FMCA’) dismissing two applications by her which, respectively, alleged discrimination in employment and victimisation in breach of s 42 of the Disability Discrimination Act 1992 (Cth).  The application for an extension of time is not opposed but I will indicate why, in my view, it is appropriate to exercise the Court’s discretion in the applicant’s favour.

2                     Order 52 r 15(2) has the effect that notwithstanding the 21 day limit imposed by O 52 r 15(1), an extension of time may be granted ‘for special reasons’.  Various cases have discussed what will, or may, be necessary to constitute reasons which are special but in the particular circumstances of the present case it is sufficient to refer to the judgment of a Full Court in WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 (a case which in practical terms involved a delay of seven days) at [5]-[7] where the Full Court said:

‘5.        The appellant relies upon O 52 r 15(2) to bring his appeal out of time.  The rule provides that “the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal”.  It is plain that the grant of leave under O 52 r 15(2) is not automatic.  As the Judicial Committee of the Privy Council pointed out in Ratnam vCumarasamy [1965] 1 WLR 8 at 12:

“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

6.         In cases under r 15(2) there is an added burden.  An extension of time will only be granted “for special reasons”.  The meaning of this was considered by the Full Court in Jess v Scott (1986) 12 FCR 187 at 195 where it was said:

“It should not be overlooked that r 15(2) enables leave to be given ‘at any time’; the ‘special reasons’ relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.  It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late.  ‘Special reasons’ must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”

7.         The discretion to extend time is given for the purpose of enabling the          court to do justice between the parties:  Hughes v National Trustees        Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262;            Gallo v Dawson (1990) 93 ALR 479 at 480.  So, for example, where             the delay is short and no injustice will be occasioned to the    respondent, justice will usually be done if the extension of time is      granted.’

            (Emphasis added)

3                     The application for an extension of time is supported by an affidavit sworn by Emanueli Oliveri, solicitor for Ms Penhall-Jones, filed on 18 July 2008, which states:

‘1.        I am the solicitor for the Margaret Penhall-Jones (“the applicant”).

2.         The decision of the FMJ Raphael was delivered on 24 June 2008 and the last day for lodging an appeal was 15 July 2008.

3.         I have communicated by telephone to the respondent’s solicitors that the Applicant intended to appeal on 15 July and on 18 July 2008.

4.         The applicant required an extension of time so as to allow counsel to settle the grounds of appeal.’

4                     It does not appear from these facts that there could be any question of any prejudice to the respondent as a result and none was claimed.  Nor was it suggested that the proposed appeal was so evidently without prospects that it would be futile to grant an extension of time.

5                     I am satisfied that the interests of justice favour an extension of time in the present matter so that Ms Penhall-Jones may pursue her appeal.  It goes without saying that this constitutes no forecast of any kind about the result of the appeal.

6                     The present application is an interlocutory one.  Although it has succeeded it says nothing about the final outcome.  In the circumstances it is appropriate that there be no order as to costs of the application for an extension of time (see, by way of analogy, Thompson v IGT (Australia) Pty Ltd [2008] FCA 994 at [63]-[65]).

Associate:

Dated:         31 July 2008