Vergara v Living and Leisure Australia Ltd [2013] FCA 775

Vergara v Living and Leisure Australia Ltd [2013] FCA 775

Although the respondents had not shown real prejudice from the seven month delay and there was a factual foundation for racial discrimination claims, the applicant had no acceptable reason for waiting nearly another three months after the Ewin proceedings concluded before filing. Because that further delay was within his control and was inexcusable and unjustifiable, it was not fair and equitable to grant an extension of time under s 46PO(2).

Jurisdiction
Australia
Judgment Date
08 August 2013
Procedural Posture
Application for an Extension of Time Under S 46 Po(2) of the Australian Human Rights Commission Act 1986 (cth) to Make an Application Alleging Unlawful Discrimination and Breach of Contract / Application for Leave to File Claim Out of Time; Proposed Strike Out Application by the Fourth Respondent If Leave Granted
Outcome
Application for extension of time refused; applicant ordered to pay the respondents' costs of the application and of the proceeding.
Legal Topics
['extension of Time' 'racial Discrimination' 'racial Hatred' 'victimisation' 'prejudice From Delay' 'arguable Case' 'strike Out' 'breach of Contract']
['practice and Procedure' 'human Rights and Discrimination' 'employment'] ['extension of Time' 'racial Discrimination' 'racial Hatred' 'victimisation' 'prejudice From Delay' 'arguable Case' 'strike Out' 'breach of Contract']

Case Brief

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Procedural Posture

Application for an Extension of Time Under S 46 Po(2) of the Australian Human Rights Commission Act 1986 (cth) to Make an Application Alleging Unlawful Discrimination and Breach of Contract / Application for Leave to File Claim Out of Time; Proposed Strike Out Application by the Fourth Respondent If Leave Granted

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth).' 'Whether the applicant had an acceptable explanation for filing the application about seven and a half months late.' 'Whether the delay caused prejudice to the respondents.' 'Whether the applicant had an arguable case of racial discrimination under the Racial Discrimination Act 1975 (Cth).' 'Whether any racial discrimination claim against Robert Walters Pty Ltd was incompetent because it was not a respondent to the terminated Commission complaint.']

Ratio Decidendi

Although the respondents had not shown real prejudice from the seven month delay and there was a factual foundation for racial discrimination claims, the applicant had no acceptable reason for waiting nearly another three months after the Ewin proceedings concluded before filing. Because that further delay was within his control and was inexcusable and unjustifiable, it was not fair and equitable to grant an extension of time under s 46PO(2).

Court Disposition

Application for extension of time refused; applicant ordered to pay the respondents' costs of the application and of the proceeding.

Orders

  • ["The applicant's application for an extension of time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) is refused." 'The applicant pay the respondents costs of the application.' 'The applicant pay the respondents costs of the proceeding.']