Bower v K&S Freighters Pty Ltd

[2021] FedCFamC2G 260

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bower v K&S Freighters Pty Ltd [2021] FedCFamC2G 260

File number(s):

SYG 1794 of 2020
SYG 2002 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

18 November 2021

Catchwords:

PRACTICE AND PROCEDURE – extension of time – short delay for which the applicant was not responsible – extension of time granted

Legislation:

Fair Work Act 2009 (Cth), ss 368, 370

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

ComCare v A’Hearn (1993) 45 FCR 441

Ferrus v Qantas Airways Ltd (2006) 155 IR 88

McConnell v A & PM Forataro t/as Tony’s Plumbing Service (2011) 202 IR 59

Phillips v Australian Girls’ Choir [2001] FMCA 109

Stephens v Australian Postal Corporation [2010] FMCA 1012

Division:

Division 2 General Federal Law

Number of paragraphs:

34

Date of last submissions:

21 September 2020

Date of hearing:

Decided without oral hearing

Place:

Sydney

ORDERS

SYG 1794 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SYDNEY ARTHUR BOWER

Applicant

AND:

K&S FREIGHTERS PTY LTD

Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	18 NOVEMBER 2021

THE COURT ORDERS THAT:

1.Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth), the time for the filing of the application is extended up to and including 27 July 2020.

2.The matter is listed for directions at 10.15am on 18 February 2022.

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).

INTERLOCUTORY ORDERS

SYG 2002 of 2020

BETWEEN:

SYDNEY ARTHUR BOWER
Applicant

AND:

K&S FREIGHTERS PTY LTD

Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	18 NOVEMBER 2021

BY CONSENT, THE COURT ORDERS THAT:

1.The proceedings are dismissed with no order as to costs.

[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 DRIVER:

1. These proceedings commenced with a Fair Work application in matter SYG1794/2020 filed on 27 July 2020. It appears that that matter was allocated to the docket of Judge Street. His Honour made procedural orders on 13 August 2020, including an order under s 370 of the Fair Work Act 2009 (Cth) (Fair Work Act) granting an extension of time for the filing of the application up to the date of lodgement on 24 July 2020.

2. A second application was filed in matter SYG2002/2020 on 25 August 2020.  That application was also filed out of time and the applicant, Mr Bower, requested an extension of time.

3. In October 2020 the parties proposed consent orders in matter SYG1794/2020 dismissing proceeding SYG2002/2020 with no order as to costs and making procedural orders, presumably in SYG1794/2020. 

4. I had made procedural orders by consent in SYG2002/2020 on 9 September 2020 joining SYG1794/2020 and SYG2002/2020 and setting aside orders 1 to 4 made in SYG1794/2020 on 13 August 2020 under rule 16.05(2)(a) of the then Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

5. As a consequence, Mr Bower again required an extension of time to continue the proceedings.

6. The above history is somewhat confusing.  The parties provided submissions on the question of an extension of time and agreed to me dealing with them on the papers.  Regrettably, I overlooked doing so at the time and it is now necessary to rectify that oversight.

   CONSIDERATION

7. Mr Bower resigned from his employment with the respondent, K&S Freighters Pty Ltd (K&S Freighters) on 20 March 2020 in circumstances which Mr Bower says amounted to constructive dismissal by K&S Freighters.

8. Mr Bower filed an application with the Fair Work Commission ("the FWC Application") alleging a breach of general protections involving dismissal.

9. On 23 June 2020 a conciliation conference was held by the Fair Work Commission, but the dispute was not resolved. On 29 June 2020 the Fair Work Commission issued a certificate under s 368 of the Fair Work Act. As a result, Mr Bower had, by virtue of s 370 of the Fair Work Act, until 13 July 2020 to commence proceedings.

10. The solicitor acting for Mr Bower, Mr Geoffrey William Baldwin of Stacks Champion, had confirmed with Mr Bower that he wished to commence proceedings in the Federal Circuit Court, and Mr Baldwin intended that the application to commence proceedings ("the FCC Application") be filed on 13 July 2020. Because of COVID-19, however, Mr Baldwin was on that day working remotely and encountered a technical problem which prevented the filing on that day.

11. The FCC Application was lodged on the following day, 14 July 2020, by Ms Meena Nawabi, a paralegal with Stacks Champion.

12. On or about 15 July 2020 Ms Nawabi was advised by the Federal Circuit Court Registry that the FCC Application had not been made in the form required by the Federal Circuit Court Rules. In the immediately subsequent days, Ms Nawabi made further attempts to file the FCC Application following guidance given by the registry in the course of telephone enquiries, during which she received what appeared to her to be conflicting advice from different registry staff to whom she spoke. She made four such attempts[1] before she finally received a confirmation from the registry that the FCC Application had been accepted.[2]

    [1] FCC Registry ID numbers 8833, 8843, 8850, 8876

    [2] Federal Circuit Court Registry ID 8982

13. As service is effected by the Fair Work Commission in relation to applications for a remedy for unfair dismissal made to it, Ms Nawabi was unaware that the pursuit of such an application to the Court required that service be effected by Mr Bower.

14. It was for the reasons set out in the preceding paragraphs that K&S Freighters was not advised of the FCC Application or of the first return date listed on 13 August 2020 until 31 August 2020,.

    The extension application

15. Mr Bower seeks an extension of time, further to consent orders made by the Court on 9 September 2020, on the following grounds and reasons.

16. First, the delays described above were not owing to any want of diligence or failure to prosecute his case, on the part of Mr Bower personally, but were the responsibility of those acting for him.

17. Mr Bower submits that the initial delay was beyond the control of those acting for him, but it is conceded that Mr Baldwin should have taken steps to avoid or minimise further delay.

18. Despite that, Mr Bower has at no stage relented in his wish to prosecute his claims, and delays on the part of those acting for him have arisen from inadvertence and not from want of continued effort to progress Mr Bower’s claims.

19. It is further submitted by Mr Bower that the delays have not operated to the disadvantage of K&S Freighters, either in relation to costs or to its ability to properly respond to Mr Bower’s claims.

20. In particular, K&S Freighters has been at all material times aware of Mr Bower’s claims and the basis for them, by reason of its receipt of the FCC Application.  Mr Bower submits that the delay, which is difficult to quantify precisely but is at the outside a couple of months, it not such as to disadvantage K&S Freighters in any way. No record on which K&S Freighters might rely should have been destroyed by it in this short period of time, and (at least to Mr Bower’s knowledge), its access to any necessary witness in its cause has not been impaired; nor any resource it might require lost to it.

21. The FCC Application sets out an alleged serious injustice wrought on Mr Bower by K&S Freighters. It is in the interests of fairness, the concept underpinning the Fair Work Act, that Mr Bower should have a forum in which to have his claims and concerns ventilated, and independently assessed.

22. In summary, it is submitted by Mr Bower that none of the delays which have occurred have operated to the disadvantage of K&S Freighters, and that there is no difficulty or disadvantage faced by K&S Freighters which it would not have had to face had the delays not occurred.

23. It is accordingly submitted that an extension of time should be granted to allow Mr Bower to have his application heard and decided by the Court.

24. K&S Freighters neither consents to nor opposes an extension of time.  K&S Freighters notes that SYG2002/2020 duplicates the proceedings commenced in SYG1794/2020 and that the second application in time should be dismissed or discontinued.  An extension of time is only needed in SYG1794/2020. 

25. K&S Freighters deal with the general principles of an extension of time, which I respectfully accept and adopt. 

26. The principles governing the exercise of the Court’s discretion to extend time (albeit in the context of the general discretion) were summarised in Phillips v Australian Girls Choir at [10]:[3]

    1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).

    2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302).

    3.Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287).

    4.Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287).

    5.The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416).

    6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417).

    7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (see Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528).

    [3] [2001] FMCA 109 (as applied in Ferrus v Qantas Airways Ltd (2006) 155 IR 88)

27. Representative error is a recognised ground for the grant of an extension of time.[4]

    [4] McConnell v A & PM Forataro t/as Tony’s Plumbing Service (2011) 202 IR 59

28. The nature of the error, and its genesis, is not strictly the focus of the enquiry. It can range from genuine mistake to inactivity or failure to act promptly. This is so even where the delay is “inexcusable” and a consequence of “gross inaction”.[5]

    [5] ComCare v A’Hearn (1993) 45 FCR 441 at 443-444 per Black CJ, Gray and Burchett JJ

29. Attention is instead thus directed at the employee’s action or inaction. The central question is, in substance, whether the employee can properly be held to be responsible for the delay. As Smith FM put it in Stephens v Australian Postal Corporation[6] at [21]:

    the failings of legal advisers should not necessarily be attributed to their clients who, as a result, find themselves needing an indulgence from the court or an exercise of a discretionary power to extend a time limit.

    [6] [2010] FMCA 1012

30. As a general proposition, where an employee has provided prompt instructions and otherwise been responsive to enquiry, he should not be held responsible for any error on his representative’s part.

31. K&S Freighters submit, however, that there must be some positive indication before the Court that this has occurred. A bare assertion is not sufficient. To the extent that Mr Bower’s submissions (noting there is no evidence available) do not go further than this, and in particular do not explain the reason for the delay between the certificate being issued on 29 June 2020 and confirmation of instructions on 13 July 2020, they submit that there may be an inadequate basis on which to grant the extension.

32. Mr Bower’s submissions on the explanation for the delay rest on his representative’s submissions rather than evidence, but I have no reason to disbelieve what has been put before me.  The delay is relatively short and the explanation for the delay is plausible.  It is noteworthy that an extension of time had been granted by Judge Street in SYG1794/2020 but that and other orders made by his Honour were set aside by me by consent on 9 September 2020.  In my view, the considerations which may have motivated his Honour to grant that extension of time probably still apply.  In any event, I am satisfied that Mr Bower, through his representatives, has adequately explained the relatively short delay in bringing the proceedings.

    CONCLUSION

33. I will grant the extension of time sought in proceeding SYG1794/2020.  I will order by consent that SYG2002/2020 be dismissed with no order as to costs.

34. There remains the question of what further procedural orders should be made in order to advance these proceedings.  The procedural orders proposed by the parties in October 2020 are no longer appropriate, given the passage of time.  I will list the matter for further directions.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       18 November 2021