There are times when applications going before the Queensland Human Right Commission can be argued as being out of time and they give rise to strong arguments on jurisdictional grounds.
The reasons for the delay can be wide and varied, but the principle that must be argued in favour of the complainant is that there is good cause for the Queensland Human Rights Commission or the Queensland. Industrial Relations Commission to use discretion on the basis that there is good cause for the complaint to be both accepted and heard.
In Buderim Ginger v Booth, it was decided in the context of the exercise of a discretion under section 138 of the Act and the determination of whether 'good cause' had been shown.
In determining that question, factors such as:
the reason why the complaint was not made within time; t
he extent of the delay in its being brought forward; and
whether accepting the complaint late would occasion prejudice to the Respondent, will often feature prominently.
Atkinson J (with which de Jersey CJ and McPherson JA agreed) wrote:
'Although it is not essential to show that there is a reason for and justification for the delay in order to show good cause, such a consideration is always relevant to such a decision. In forming an opinion that the Complainant has shown good cause, the Commissioner is not fettered by rigid rules but must take into account all of the relevant circumstances of the particular case such as the length of the delay; whether the delay is attributable to the acts or omissions of the Complainant or his or her legal representatives, the Respondent, or both; the circumstances of the Complainant; whether there has been a satisfactory explanation for the delay; and whether or not the delay will cause prejudice to the Respondent.'
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