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s.370

Extension of time discussion.

Principles for extension of time

The relevant principles which should govern the Court’s discretion to extend the time within which an application under s 170EA of the Act may be lodged are set out in the decisions of Keely J in Transport Workers Union of Australia v National Dairies Ltd (No 2) (1994) 57 IR 186 and Beazley J in Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412. In each case the Court applied the tests referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349.

I agree, with respect, that those principles are appropriate to be applied in the circumstances of this matter.

Briefly stated the principles are:

“1.          Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2.           Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

3.           Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4.           The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5.           The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6.           Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”

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