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Abela v Telstra Corporation Ltd

Abela v Telstra Corporation Ltd

Case [2012] FMCA 17 20 January 2012

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABELA v TELSTRA CORPORATION LTD

[2012] FMCA 17

INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Fair Work Act – application to bring proceedings for unlawful dismissal out of time – relevant considerations – whether proceeding previously discontinued – whether e-lodgment of notice of discontinuance deemed to be filing of that notice – power of registrar to reject documents – decision of registry to return document for signing by person on the record administrative not judicial in nature – whether interlocutory delays amount to abuse of process.

Fair Work Act 2009, ss.97, 351, 352, 369, 371
Federal Magistrates Court Rules 2001, rr.2.03, 2.05, 13.01, 13.10

Administrative Decisions (Judicial Review) Act1977
Industrial Relations Act 1988
Acts Interpretation Act 1901, s.13
Fair Work Regulations 2009, reg.3.01

Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 353
Satchithanantham v National Australia Bank (2010) 268 ALR 222
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
University of New South Wales v Huang [2011] FCA 673
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75

Applicant:

MICHAEL JOSEPH ABELA

Respondent:

TELSTRA CORPORATION LTD

File Number:

SYG 502 of 2010

Judgment of:

Cameron FM

Hearing date:

4 November 2011

Date of Last Submission:

4 November 2011

Delivered at:

Sydney

Delivered on:

20 January 2012

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr M. Seck

Solicitors for the Respondent:

Blake Dawson

ORDERS

The time for the commencement of these proceedings be extended to 10 March 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 502 of 2010

MICHAEL JOSEPH ABELA

Applicant

And

TELSTRA CORPORATION LTD

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant was once an employee of the respondent. His employment was terminated on 13 July 2009. It appears that that termination followed a period of difficulty in the employment relationship including a period of sick leave taken by the applicant.
The applicant has filed an application in a case seeking leave to bring an unlawful dismissal claim under the Fair Work Act 2009 (“FWA”) out of time.
On 10 March 2010 the applicant filed an application commencing these proceedings under the FWA and with that application he filed a “Form 2” claim alleging dismissal in contravention of a general protection and a “Form 4” claim alleging contravention of a general protection. In the latter claim the applicant alleged disability discrimination on the part of the respondent and asserted that it had injured him in his employment. This claim was, in effect, dismissed summarily on 19 September 2011 when the relevant paragraphs of the applicant’s further amended points of claim were struck out. In the unlawful dismissal claim the applicant again alleged a breach of a general protection relying on the matters raised…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abela v Telstra Corporation Ltd

Details

AGLC: Abela v Telstra Corporation Ltd [2012] FMCA 17
Case: [2012] FMCA 17
Decision Date: 20 January 2012

CaseChat Overview and Summary

The case of Abela v Telstra Corporation Ltd was brought before the Federal Circuit and Family Court of Australia. The plaintiff, Abela, sought to extend the time for the commencement of proceedings against Telstra Corporation Ltd. The nature of the dispute was procedural, focusing on the timeliness of initiating the legal action rather than the merits of the underlying claim. The plaintiff requested an extension of time beyond the standard period allowed by law, arguing exceptional circumstances justified the delay.

The primary legal issue before the court was whether the plaintiff had demonstrated sufficient grounds to warrant an extension of the limitation period. The court had to consider the principles governing the extension of time in legal proceedings, including the balance between the need to enforce limitation periods and the circumstances that might warrant an exception. The court also needed to assess the reasonableness of the delay and the impact of the delay on the defendant.

The court found that the plaintiff had provided satisfactory explanations for the delay, which were deemed exceptional circumstances. The delay was not found to have prejudiced the defendant, and there was no evidence suggesting bad faith on the part of the plaintiff. Therefore, the court granted the extension, allowing the proceedings to commence by the specified date. The decision underscored the importance of the principles of fairness and justice in the context of procedural law.

Orders

Orders of the court

The time for the commencement of these proceedings be extended to 10 March 2010.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Abela v Telstra Corporation Ltd [2012] FMCA 17

Most Recent Citation

JIMENEA v DYNAMIC SUPPLIES PTY LTD [2013] FCCA 63

Cases citing this decision · 3 of 3 shown

Mattiacci v The Trustee for Metricon Homes Unit Trust T/A Metricon Homes Pty Ltd
[2017] FCCA 319

…Clarke v Service to Youth Council Incorporated [2013] FCA 1018 Whitfield v One Key Resources Pty Ltd [2014] FCCA 553 Abela v Telstra Corporation Ltd [2012] FMCA 17 Owen v Cudeco Ltd [2013] FCCA 1827 Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490 McPaul v CPC Engineering Pty Ltd [2013]…
Milas v GM Holden Limited
[2015] FCCA 1311 Para 10

…ussed in Brodie-Haans v MTV Publishing Ltd (1995) 67 IR 298 (“Brodie-Haans”), and recently cited in Abela v Telstra Corporation Ltd [2012] FMCA 17. The principles are (Brodie-Haans at pages 299-300): “a. 1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed peri…
Jimenea v Dynamic Supplies Pty Ltd
[2013] FCCA 63 Para 3

…ilst the note to the section is not taken to be part of the Act (see s.13 of the Acts Interpretation Act 1901 and see Abela v Telstra Corporation Ltd [2012] FMCA 17) the matters identified in Brodie-Hanns are important and relevant considerations in the exercise of the broad discretion provided for in the legisla…

View all 3 citing cases →

Cases cited in this decision · 8 of 8 shown

University of New South Wales v Huang
[2011] FCA 673 Para 4

…26 CLR 256 at 265 [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ. However, as pointed out by Flick J in University of New South Wales v Huang [2011] FCA 673 at [21] a recurring, although not exclusive, concern when considering whether a proceeding involves an abuse of process is whether it involves oppression a…
Barclay v Board of Bendigo Regional Institute of Technical and Further Education
[2011] FCAFC 14 Para 3

…for adverse conduct, the comments of Grey and Bromberg JJ said in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 are relevant. Their Honours said: The determination of those questions involves characterisation of the reason or reasons of the person who took the ad…
Satchithanantham v National Australia Bank Ltd
[2010] HCATrans 101 Para 9

…was an administrative one reviewable under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) and not of judicial character: Satchithanantham v National Australia Bank (2010) 268 ALR 222 at 230-231 [49]-[50]. No ADJR Act challenge having been made to the registry’s decision, it stands. Consequently, it must be concluded that the…
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd
[2009] HCA 43 Para 4

…bmits that the present proceedings are an abuse of process. In this regard, it referred to Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at 93-94 [28]: The term “abuse of process”, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 4

…nsusceptible of a formulation comprising closed categories. Development continues”: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 265 [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ. However, as pointed out by Flick J in University of New South Wales v Huang [2011] FCA 673 at [21]…
Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCAFC 42 Para 8

…, should that be an appropriate decision to make in the circumstances: cf Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 353 at 357 [15]. Arguably, a registry officer does not have that power. However, here the document was not refused filing but notionally returned to be prope…
Brodie-Hanns v MTV Publishing Ltd
[1995] IRCA 601 Para 1

…The respondent submitted that the principles relevant to whether an extension of time should be allowed are those discussed in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 where they were expressed in the following terms: (a) The presumptive position is that there must be compliance with the time limit unless there is an acceptable…
Satchithanantham v National Australia Bank
[2010] FCAFC 47 Para 9

…the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) and not of judicial character: Satchithanantham v National Australia Bank (2010) 268 ALR 222 at 230-231 [49]-[50]. No ADJR Act challenge having been made to the registry’s decision, it stands. Consequently, it must be concluded that the notice of d…

Legislation cited in this decision · 6

Fair Work Act 2009 (Cth)
351, 352, 369, 371, 97 6 mentions (from Para 2)
Federal Magistrates Court Rules 2001 (Cth)
13.01, 13.10, 2.03, 2.05 4 mentions
Acts Interpretation Act 1901 (Cth)
13 2 mentions (from Para 1)
Fair Work Regulations 2009 (Cth)
3.01 2 mentions (from Para 5)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 9)
Industrial Relations Act 1988 (Cth)
1 mention (from Para 1)