Bird v FORESHEW

[2015] FCCA 3315

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIRD v FORESHEW & ORS [2015] FCCA 3315

Catchwords:
INDUSTRIAL LAW – Non-compliance with s.370 – whether the interests of the administration of justice warrant an extension of time – no proper or adequate explanation for the failure to file the document within the 14 days – application dismissed.

Legislation:

Fair Work Act 2009, ss.341, 356, 370, 566

Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

Applicant: COLLEEN BIRD

First Respondent: CRAIG FORESHEW

Second Respondent: BIRABAN ABORIGINAL LAND COUNCIL

Third Respondent: CAROL SMITH

File Number: SYG 2515 of 2015

Judgment of: Judge Street

Hearing date: 11 December 2015

Date of Last Submission: 11 December 2015

Delivered at: Sydney

Delivered on: 11 December 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Bilbie Dan Solicitors

ORDERS

1. The proceedings are dismissed for want of compliance with s.370 of the Fair Work Act 2009.

2. The exhibits may be returned after the expiry of 28 days.

3. The submissions of the Applicant will be marked as Exhibit B.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2515 of 2015

COLLEEN BIRD

Applicant

And

CRAIG FORESHEW

First Respondent

BIRABAN ABORIGINAL LAND COUNCIL

Second Respondent

CAROL SMITH

Third Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.566 of the Fair Work Act 2009. The application alleging contravention of the Fair Work rights under s.341 and s.356 was filed by the applicant on 11 September 2015. Under s.370 of the Act, an application must be filed within 14 days or such further period as the Court allows. In considering whether or not a further period should be allowed, the Court takes into account the explanation for the delay and also whether the interests of the administration of justice warrant an extension of time.

2. These factors have been outlined in more detail in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298. The respondents have moved for dismissal of the application on the basis that leave should not be granted and have read two affidavits in support. The first affidavit demonstrates the time within which the application should have been filed as 9 September. The second affidavit identifies the grounds upon which the applicant was dismissed, being grounds of misconduct and identifies the letter of termination of the applicant in that regard.

3. Ms Bird has provided a medical report, which identifies that as at August 2015, she was suffering from depression and anxiety and a further medical report dated 19 October 2015 in which the doctor identifies Ms Bird as having significant mental-health issues and other issues of anxiety. Nothing in the medical report identifies a basis upon which Ms Bird was not able to attend to the filing of the process within the time identified.

4. On 22 October the Court made orders for the filing of affidavit evidence and written submissions in relation to the respondent’s application to have the proceedings dismissed.  No such documents were filed by the applicant.  Ms Bird has not put on any affidavit evidence.   Ms Bird has sent an email on 12 November to the Court, identifying that she was suffering with medical conditions which refers to the report dated 19 October 2015.  Ms Bird says she was suffering anxiety attacks and depression due to her dismissal and that she has had no legal assistance to assist her attending to the timeframe and that Legal Aid has been denied on 11 November 2015.

5. Notwithstanding that the short period involved the matters identified by the applicant are not matters that provide a proper or adequate explanation for the failure to file the document within the 14 days. However, of greater significance is the fact that I am not satisfied that there is any seriously arguable case that warrants an extension of time in the interests of the administration of justice where on the evidence before this Court the applicant was lawfully dismissed for misconduct. I am not satisfied that the applicant has provided an adequate explanation for the delay and I find that the circumstances identified do not disclose a sufficiently arguable case to warrant an extension of time. I decline to extend the time period under s.370 and the proceedings are dismissed for want of competence within s.370 of the Fair Work Act 2009.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 December 2015