Extension of time
28 Section 46PO(2) provides that an application must be made within 60 days after the date of issue of the notice of termination under s46PH(2), "or within such further time as the court concerned allows". Strictly speaking, there is no obligation that the Court be satisfied that the extension of time is, for example, "necessary in the interests of the administration of justice", as is the case for an extension of time under s 477A of the Migration Act, considered by the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604. However, even if necessity is not required, the interests of justice more broadly are ordinarily relevant to any decision made by this Court, and in most cases will be self-evident.
29 In Tu'uta Katoa at [10], Kiefel CJ, Gageler, Keane and Gleeson JJ identified "the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application" as particularly relevant among the myriad of potential relevant facts and circumstances pertaining to the consideration of an application for an extension of time. Their Honours noted that the presence of the threshold of the extension of time being necessary in the interests of the administration of justice meant that it is not enough that the extension of time sought is merely desirable. Meeting that or another higher threshold is not mandated by s 46PO(2), but such a consideration may be taken into account in the exercise of the otherwise unfettered discretion. As already noted, the interests of justice will always be a generally relevant consideration, but a threshold of the extension being necessary for that purpose may not always be appropriate in the absence of that being mandated.
30 In Stepien v Department of Human Services [2018] FCA 1062, Mortimer J (as the Chief Justice then was) observed:
[20] The Court has a discretion under s 46PO(2) to extend the time in which an application can be made under s 46PO(1). The discretion is unconfined, save by reference to the scope, subject matter and purpose of the discretionary power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 (Mason J).
[21] Discretionary powers such as the one in s 46PO(2) inevitably involve consideration of what is in the interests of the administration of justice, that being the Court's core function.
[22] In this sense, the discretion in s 46PO(2) is of the same character as that to be found in s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344. As I observed in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [41]-[42], Hunter Valley has become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time. In Hunter Valley at 348-350, Wilcox J reviewed the matters which had been treated as relevant by the authorities to that point. That list of factors has been endorsed repeatedly in this Court as providing guidance on how the exercise of such a discretion might be approached, and has been regularly endorsed and applied to similar discretions to extend time, including that in s 46PO(2): see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24]; Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624; 151 FCR 524 at [11]-[12].
[23] The three principal matters Wilcox J found that a court takes into account are: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted and the prospects of success of the appeal if an extension of time were to be granted.
31 In Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) (No 3) [2022] FCA 1269, Bromberg J, after quoting from Tu'uta Katoa at [10]-[12], observed:
[10] Taking into account and applying those observations, to my mind, the primary purpose of s 46PO(2) is to impose a time limit on the making of an application. However, the power there given to extend time recognises that the imposition of a rigid time limit may inflict injustice upon a prospective applicant. To avoid or ameliorate that potential for injustice, an extension of time may be granted but only where the interests of the administration of justice so require. To assess what the interests of the administration of justice require, a broad inquiry may be necessary which takes into account "a myriad of facts and circumstances", including those which have often been regarded as the primary (though non-exhaustive) considerations identified in Tu'uta Katoa as:
(1) the length of the applicant's delay;
(2) the reasons for the delay;
(3) any prejudice to the respondent or third parties; and
(4) the merits of the underlying application.
[11] Other considerations which may be relevant, given the subject matter of a prospective application which alleges a contravention of the SD Act, may include the seriousness of the allegations of discrimination which are sought to be pursued and whether the allegations raise matters of public importance or of general application: see James [James v WorkPower Inc [2018] FCA 2083] at [38].
32 The thrust of the argument advanced by the applicant is that:
(a) the delay is not significant, being in the order of six months, rather than some longer time, such that the dispute has not "festered", citing Ferguson at [20];
(b) there is no identified prejudice of the relevant kind identified by the respondents, with there being none of the common features of concern with delay, such as loss of memory by witnesses, this being a largely documentary case in a narrow compass, albeit with significant legal issues;
(c) a proceeding had originally been commenced within time in the Federal Circuit Court and had only been discontinued before the first court date because of fears about costs;
(d) there is a reasonable explanation for the delay in bringing a second application, namely being able to secure a partial indemnity of $50,000 towards any adverse costs order, with the application being filed immediately upon that being put in place;
(e) the underlying issues are of public importance, being the interpretation and application of provisions rendering discrimination upon the basis of gender identity unlawful (this not having previously been litigated);
(f) the constitutional challenge brought by the respondents serves only to heighten the public importance aspect;
(g) the opportunity to bring the case is also important to the applicant personally in terms of identification as a woman as recognised by an undated birth certificate issued by the Registry of Births, Deaths and Marriages in Queensland, and being recognised as a woman by the artificial intelligence deployed by the first respondent in allowing access to the App;
(h) In Tu'uta Katoa at [17], it was noted that it will often be appropriate to assess the merits for the purposes of an extension of time application at a reasonably impressionistic level, because those interests are likely to be advanced by granting the additional time to an application with "some merit", depending on other relevant factors.
33 The respondents' opposition to the extension of time sought principally relies upon arguments also advanced in support of the notice of objection to competency, with only passing reference to the arguments advanced by the applicant summarised above, namely:
(a) that the phrase "an application" in s 46PO(1), coupled with such a reading being consistent with primacy of conciliation and prompt commencement of proceedings if that does not succeed, and the undesirability of the alternative of introducing the notion of a freestanding cause of action inconsistent with the statutory constraints on the bestowing of curial jurisdiction, means that only a single application could be made following the termination of the complaint by the delegate of the President of the Commission, such that this had been exhausted and thereby extinguished once the application was made to the Federal Circuit Court and discontinued; and
(b) a lack of merit because s 5B of the AHRC Act was not engaged.
34 Section 2 of the Acts Interpretation Act 1901 (Cth) provides:
2 Application of Act
(1) This Act applies to all Acts (including this Act).
Note: This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.
(2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
35 Section 23(b) of the Acts Interpretation Act provides:
23 Rules as to gender and number
In any Act:
(a) words importing a gender include every other gender; and
(b) words in the singular number include the plural and words in the plural number include the singular.
36 The respondents contend that s 23(b) does not apply because the SD Act manifests a contrary intention, in the words of counsel for the respondents, "in circumstances where the statutory purpose allows parties to bring complaints with promptitude in circumstances where they are exercising a special statutory creature of rights, cluster of rights, such that if we were to allow them to recommence and recommence on that action, they could constitute vexation and that is not the purpose of these provisions". I did not find this argument persuasive.
37 A seminal case is Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651, a Privy Council decision on appeal from the High Court in which it was found that a provision of a corporations statute dealing with a power to acquire the shares of dissenting shareholder following a successful takeover. The provision referred to a single company and it was found that the provision applied according to its terms only to a single company, not to two companies. This meant that the then New South Wales equivalent to s 23(b) of the Acts Interpretation Act did not apply to make it applicable to more than one company, adopting, as did the High Court, the conclusion of the Chief Judge in Equity that the provision only contemplated singularity. Lord Morris of Borth-y-Gest said of the equivalent to s 23(b) and the approach to be taken in departing from it, at 656:
Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to anyone particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.
38 The above passage was quoted with approval in Walsh v Tattersall [1996] HCA 26; 188 CLR 77, a case dealing with duplicity of criminal charges, finding by majority that the South Australian equivalent to s 23(b) of the Acts Interpretation Act did not apply. Gaudron and Gummow JJ reasoned at 90-91 that this precluded charging more than one offence in a single charge. The issue did not arise on the analysis of the dissentients, Dawson and Toohey JJ, upon the basis that only one offence had been charged.
39 The above passage from Blue Metal Industries Ltd v Dilley was partially quoted in Pfeiffer v Stevens [2001] HCA 71; 209 CLR 57, a case involving the power of a Minister to extend the period of time for the operation of an interim local law, and the question of whether that sunset period could be extended more than once. By majority it was found that the Queensland equivalent of s 23(b) of the Acts Interpretation Act did apply. Gleeson CJ and Hayne J at [25] said that the phrase in question, "a longer period", was neutral on the question, so as not to exclude the operation of the plural. McHugh J at [59] reasoned that to read the Act in question as giving the power to extend the sunset period more than once did not change the character of the legislation, and still had to be done in accordance with and for the purposes of that Act. That has direct application to the present situation, it not being argued, let alone compellingly so, that allowing more than one application to be made, and only by leave if outside the 60 days, in any way changes the character of the SD Act.
40 In all three cases of Blue Metal Industries Ltd v Dilley, Walsh v Tattersall and Pfeiffer v Stevens, the statute in question presented compelling reasons for departing, or not departing, from the equivalent to s 23(b) of the Acts Interpretation Act. They do not support any reason at all, let alone a compelling reason, for s 23(b) of the Acts Interpretation Act not to apply to s 46PO(1) of the AHRC Act. To the contrary, the other statutes referred to below would likely need to be read in this way if this argument were to succeed. There is a manifest advantage in having s 23(b) apply to "an application" in s 46PO(1), namely to keep open the remedial provision of the SD Act, which in any event requires a court to permit a second application to proceed if it is outside the 60 day time limit. The ordinary provisions for abuse of process are ample to protect this outcome being misused.
41 I am unable to accept that the use of the singular "an" before "application" in s 46PO(1) goes anywhere in any event. Quite apart from s 23(a) of Acts Interpretation Act providing for the singular to import the plural and vice versa, there is no proper basis for reading down the right to bring a second application in this way. The phrase "an application" is frequently used in Commonwealth legislation, such as the Bankruptcy Act 1966 (Cth), the Administrative Decisions (Judicial Review) Act, the Australian Securities and Investments Commission Act 2001 (Cth), the Corporations Act 2001 (Cth) and the Competition and Consumer Act 2010 (Cth) to name but a few, which tell against such a phrase indicating that only one such application may be brought, or that discontinuing such an application and seeking later to start again is not legally possible.
42 Nor is the need for prompt commencement of a proceeding unique, with 60 days being both shorter and longer than allowed in other Commonwealth statutes. The ordinary 60 day limit is real and substantial, but it is clearly not an insurmountable barrier, because of the wide discretion for an application to be brought out of time if the Court allows it, which is a substantial control on any abuse of the process brought about by a proliferation of applications, but not a substantial hurdle to overcome in an appropriate case. The presence of that discretion does not detract from that being a real barrier, such that there is no freestanding cause of action as the respondents suggest. In any event, leave can also be sought to bring an application, which suggests that the legislature did not intend that a time limit was to be immutable or to operate more strictly than the language deployed in s 46PO(2).
43 Moreover, the very presence of discontinuance being automatically fatal to bringing fresh proceedings would have a tendency to deter discontinuing proceedings, which it is difficult to accept would be allowed by such an interpretative side wind. It is enough that any second application after discontinuance would likely need to rely upon the exercise of the Court's discretion to allow more time.
44 For all of those reasons, this first argument by the respondents must fail.
45 The respondent's second argument entails conducting a mini trial of the central legal issues raised, largely upon the basis of little more than assertion. On my perusal, and as noted earlier in these reasons, there is at least an arguable case for a contrary view, as advanced by the applicant. It is not appropriate to endeavour to determine this trial question on an extension of time application. Applying the impressionistic view authorised (but not mandated) by the High Court in Tu'uta Katoa, I consider that there is sufficient merit in the case that the applicant seeks to bring for this to be a reason in favour of granting the extension of time.
46 I consider it best not to go further in assessing the prospect of the application being successful, so as to avoid any impression of pre-judgment of the ultimate issue. I have not formed a preliminary concluded view either way, not least because the point has not yet been properly argued or fully developed, beyond the general impression of it being arguable. The trial issue raised is not so clearly required to be determined in the respondents' favour for this to be a barrier to the grant of the extension of time sought.
47 The respondents have not put forward any compelling argument in answer to the case advanced for an extension of time as summarised above. I consider that there is not just a private interest on the part of the applicant to seek to vindicate a claim of unlawful discrimination, but also a public interest in having a determination of the metes and bounds of the prohibition determined in a context where the scope for any substantial factual dispute appears at this stage to be quite limited. I am therefore satisfied that it is appropriate and generally in the interests of justice to allow the extension of time sought.
48 It follows that the extension of time sought by the applicant is granted. The respondents must pay the applicant's costs of and incidental to this aspect of the hearing on 28 April 2023.