Bertram v Circus Fit Studio Pty Ltd
[2022] FedCFamC2G 863
Federal Circuit and Family Court of Australia
(DIVISION 2)
Bertram v Circus Fit Studio Pty Ltd [2022] FedCFamC2G 863
File number(s): MLG 1753 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 19 October 2022 Catchwords: INDUSTRIAL LAW – general protections court application – application filed out of time – application for extension of time – matters relevant to exercise of court’s discretion – extension of time granted. Legislation: Fair Work Act 2009 (Cth) ss.340, 351, 352, 368, 370, 550
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r.4.01(1)
Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Zehnder v Sell Lease Property Pty Ltd t/as Sell Lease Property [2015] FCCA 3393
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicant: NS8 Lawyers & Advisors Solicitor for the Respondents: Kelly Workplace Lawyers ORDERS
MLG 1753 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIMEE BERTRAM
ApplicantAND: CIRCUS FIT STUDIO PTY LTD
First RespondentJOANNE WOODHOUSE
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
19 October 2022
THE COURT ORDERS THAT:
1.Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (Act), the time in which the Applicant may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s.368 of the Act on 11 July 2022 be extended to and include 28 July 2022.
2.The First Respondent and the Second Respondent shall file and serve a Response and points of Defence by 4.00pm on 2 November 2022.
3.The matter be referred to mediation before a Registrar of the Court on a date to be fixed.
4.In the event that the proceeding does not settle at mediation, the Registrar conduct a case management conference immediately after the mediation to make directions for the further conduct of the proceeding including listing the proceeding for final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
Introduction
Before the Court is an application for an extension of the time in which to file an application alleging dismissal in contravention of various general protection provisions of the Fair Work Act 2009 (Cth) (Act).
For the reasons that follow, I have determined that the application was filed 3 days after the expiry of the statutory timeframe. And, being satisfied it is an appropriate case, to allow an extension of the filing period to and including 28 July 2022.
context
In her substantive application, the Applicant contends that she was employed by the First Respondent from around March 2016 until she was dismissed on 6 May 2022. She contends that the First Respondent dismissed her employment in contravention of ss.340, 351 and/or 352 of the Act and that the Second Respondent was involved and is liable pursuant to s.550.
It was not contentious that the application to this Court was filed outside the statutory timeframe (although there is an issue about the duration of the delay, addressed below).
In support of her request for an extension of the time for filing, on 29 August 2022 the Applicant filed the following materials:
(a)Application in a proceeding (extension of time application);
(b)Affidavit of the Applicant, sworn on 29 August 2022; and
(c)Affidavit of a Mr Neil Salvador of NS8 Lawyers & Advisors, sworn on 29 August 2022.
The Respondents’ lawyer filed a notice of appearance on 24 August 2022. No materials were filed with or received by the Court in response to the orders of 6 September 2022 inviting them to oppose the extension of time application by filing evidence with the Court by 4.00pm on 20 September 2022.
In accordance with the orders of 6 September 2022 and communication from my chambers on 5 October 2022, as no materials were filed in opposition to the extension of time application and the Respondents did not request an adjournment or extension of the program, the matter was determined on the papers without requiring appearance of the parties.
whether the application is out of time
Section 370 of the Act provides that a person who is entitled to apply under s.365 for the Fair Work Commission (Commission) to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a)the Commission has issued a certificate under paragraph 368(3)(a) of the Act in relation to the dispute; and
(b)the application to the Court is made within 14 days after the day the certificate is issued, or within such period as the Court allows on an application made during or after those 14 days.
On 11 July 2022, the Commission issued a s.368 certificate recording its state of satisfaction that all reasonable attempts to resolve the dispute between the parties to this application (other than by arbitration) have been, or are likely to be, unsuccessful.
At 3.49pm on 26 July 2022, the Applicant (on her own behalf) attempted to lodge an Application - Fair Work Division and a s.368 certificate by email to the Court’s Melbourne registry. At 4.13pm that same day, the Court’s registry staff responded by email in which they advised of “technical deficiencies” in the Applicant’s paperwork. Specifically, the registry staff noted that the form was incomplete, attachments were not properly collated and the application was filed late.
Following further correspondence between the registry and the Applicant, the Applicant’s documents were resubmitted by email at 11.04 am on 28 July 2022 and were accepted for filing at 2.48pm on 28 July 2022, once payment of the filing fee was made. Sealed copies were not provided by the Court’s registry until 9.48am on 29 July 2022.
The Applicant asked the Court to find that her substantive application was made on the date of her first email attempt at lodgement, on 26 July 2022, and therefore that it was filed one day late. According to rule 4.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), a proceeding must be started by filing an application in accordance with the approved form. As the Applicant did not submit the documents in the correct or approved form until 28 July 2022, and indeed resubmitted documents were dated 27 July 2022, it is not possible that the application was “made” on 26 July 2022 (the day that was one day after the expiry of the statutory timeframe). The better view is that the application was made once the Applicant had attended to the requirements of filing in accordance with the Court’s Rules – which she did, during the registry’s business hours on 28 July 2022. That is the case notwithstanding that the Court’s registry did not attend to sealing the documents until the next day.
Pursuant to s.370(a)(ii) of the Act, the Applicant was required to have made her application in this Court within 14 days after 11 July 2022. That is, the Applicant was required to make application to this Court by or before 25 July 2022. The application was not filed in the approved form, and therefore was not made in accordance with the Court’s Rules, until 28 July 2022.
Accordingly, the application was made 3 days after the expiry of the statutory timeframe.
The Applicant sought the Court to invoke its discretion pursuant to s.370(a)(ii) in order to allow her application to proceed. The Respondents were invited to, but did not, file materials in opposition.
whether to allow an extension of the time for filing
The Act provides a statutory bar for taking a dismissal dispute to court, such that the Commission must first issue a s.368 certificate in relation to the dispute and the general protections application must be made to the court within 14 days after the day the certificate is issued. However the statute affords discretion for the Court to allow a longer period, on an application made during or after those 14 days.
The issue of a s.368 certificate by the Commission is a jurisdictional pre-requisite: s.370(a)(i). In this case, there was no dispute that a s.368 certificate was issued on 11 July 2022 and a copy was in evidence before the Court. Further, there was no argument put before the Court that the First Respondent was not properly named and it is apparent that the entity that has submitted a notice of appearance is the same as the entity named on the s.368 certificate. Nor was there any argument that the proceedings were not competently brought as against the Second Respondent, being an individual in relation to whom the Applicant alleges accessorial liability, and I accept there is no jurisdictional impediment in this regard: Zehnder v Sell Lease Property Pty Ltd t/as Sell Lease Property [2015] FCCA 3393 at [7]-[9].
The principles that the Court applies when considering whether to extend time are not “fixed”. However, the factors identified by Justice Marshall in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-230 (in the context of considering an application made under a provision of the Industrial Relations Act 1988 (Cth) that is similar to s.370(a)(ii) of the Act) have been regularly transposed and applied to this jurisdiction.
It is not controversial that the onus rests with the Applicant to satisfy the Court that grounds exist for exercising the Court’s discretion to grant an extension of time in her favour; and that the named Respondents bear an evidentiary onus to raise any consideration telling against the exercise of the Court’s discretion: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per Toohey and Gummow JJ at 544 and 547.
I turn now to consider the facts and circumstances of this matter in light of the established (albeit non-exhaustive) principles.
Length and explanation for the delay
I have earlier determined that the length of the delay was 3 days. That may properly be considered minimal in the present context.
The explanation for the Applicant’s delay may be understood as essentially two-fold:
First, on 12 July 2022 she had taken advice from a lawyer who miscalculated the statutory timeframe for filing by one day and advised the Applicant to make the substantive application by 26 July 2022 (not 25 July 2022, which is accepted as the time when the statutory timeframe expired). The lawyer in question gave evidence in the form of an affidavit in support of this claim.
Second, as will be apparent from the sequence of events set out above, the Applicant had attempted to file with the registry on 26 July 2022, but had not submitted the documents in a form that would be received as filed and stamped. The affidavit of the Applicant (dated 29 August 2022) annexed correspondence between the Applicant and the Court’s registry staff about the filing requirements at 4.13pm on 26 July 2022; 4.58pm on 26 July 2022; 8.37am on 27 July 2022; 5.04pm on 27 July 2022; 9.29am on 28 July 2022; 10.23am on 28 July 2022; 10.32am on 28 July 2022; 11.04am on 28 July 2022; 12.18pm on 28 July 2022; 1.25pm on 28 July 2022; and 2.48pm on 28 July 2022. The Applicant was not represented by a lawyer in these proceedings on 26 to 29 July 2022 or until 29 August 2022.
Taking the evidence at its highest (being unopposed and unchallenged), the Applicant had attempted to file one day late on the incorrect advice of a lawyer and, after the Court’s registry advised it was not in a form that could be received, over the following two days took immediate and active steps (including regular communication with the Court’s registry) to file in accordance with the Court’s Rules. In the particular circumstances of this case, I am satisfied that the delay was minimal and that there is a credible and acceptable explanation for the entirety of the Applicant’s delay. These factors weigh in favour of an exercise of the discretion to extend the time for filing.
Prejudice and fairness
The minimal delay extended for a matter of 3 days. The Respondents did not file evidence, or contend, that such delay would cause any particular prejudice.
In my view, the absence of prejudice of itself is not a matter weighing in favour of the exercise of the discretion.
Merit of the substantive claim
The Court has before it an application and accompanying statement of claim which articulates an adverse action in the form of dismissal and contends that this adverse action was taken by the First Respondent for reason(s) prohibited by various of the general protections provisions at Part 3-1 of the Act. Further, that the Second Respondent was involved in those contraventions pursuant to s.550.
The Respondents are yet to respond to the claim or enter a defence.
At this early, interlocutory stage of the proceedings, it is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time.
Conclusion
For the above reasons, the application was filed 3 days after the expiry of the statutory timeframe.
In fixing a relatively short period for making a general protections dismissal related application to the Court, the Parliament has evinced an intention that applications of this kind should be brought promptly.
However, and having regard to the established principles and on the material before the Court, I am satisfied that this is an appropriate case to exercise the discretion at s.370(a)(ii) and allow the application for an extension of the time for filing the substantive claim. The existence of a credible and acceptable explanation for the delay weigh strongly in favour of such finding and the remaining factors weigh neutrally.
I am satisfied that it is an appropriate case to exercise the discretion afforded by the statute and will order that the time for making the substantive general protections court application be extended to and include 28 July 2022. For completeness, were the date of return of the sealed documents the date the application “is made” for purposes of s.370(a)(ii), I would be minded to exercise the discretion for the reasons outlined above and as the fourth day of delay was not explained or caused by any act or omission on the part of the Applicant.
I will include standard orders for the filing of a response and points of defence by the Respondents as a next step and that the parties then attempt to resolve the matter by mediation. In the event that the matter does not resolve at mediation, it will be fixed for case management hearing.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 19 October 2022
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