Cacoutas v HBO Accounting Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Cacoutas v HBO Accounting Pty Ltd [2021] FedCFamC2G 270

File number(s): MLG 1134 of 2021
Judgment of: JUDGE SYMONS
Date of judgment: 26 November 2021
Catchwords: INDUSTRIAL LAW – Application pursuant to s370(a)(ii) of the Fair Work Act 2009 (Cth)for an extension of time within which to make a general protections court application – whether applicant has reasonable explanation for delay– whether application is meritorious – application allowed
Legislation:

Fair Work Act 2009 (Cth) ss.340, 342, 351(1), 352, 360, 361, 370

Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) rr.1.04, 1.07, 15.12, 15.13

Cases cited:

Bird v Foreshew & Ors [2015] FCCA 3315

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

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

Chou v Digital161 Pty Ltd [2021] FCA 640

Potts v Kings Warehousing Administration Pty Ltd [2014] FCCA 2671

Division: Division 2 General Federal Law
Number of paragraphs: 46
Date of last submission/s: 28 October 2021
Date of hearing: On the papers
Place: Melbourne
Solicitor for the Applicant: In person
Solicitor for the Respondent: HR Legal

ORDERS

MLG 1134 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JOHN CACOUTAS

Applicant
AND:

HBO ACCOUNTING PTY LTD

Respondent

ORDER MADE BY:

JUDGE SYMONS

DATE OF ORDER:

26 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The applicant is granted an extension of time to file his application – Fair Work Division form dated 4 April 2021 and Form 2 Claim under the Fair Work Act 2009 (Cth) alleging dismissal in contravention of a general protection dated 31 December 2020 - to 31 May 2021.

2.The respondent file and serve a response within 14 days from the date of this order.

3.Pursuant to section 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the proceeding be referred to mediation by a Registrar of this Court with such mediation to be conducted as soon as practicable.

4.In the event that the matter does not settle at the conclusion of the mediation, the Registrar conduct a case management conference immediately following the mediation to consider the most economic and efficient means of bringing the proceedings to trial and of conducting the trial, at which conference the Registrar may give further directions. The Registrar is to report the results of the mediation or case management conference to the Court as soon as is reasonably practicable after the conclusion of the mediation or case management conference.

5.There be 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…

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Details
Case
[2021] FedCFamC2G 270
Decision Date

CaseChat Overview and Summary

In the matter of Cacoutas v HBO Accounting Pty Ltd, the applicant, Cacoutas, sought an extension of time to file a general protections court application against his employer, HBO Accounting Pty Ltd, pursuant to section 370(a)(ii) of the Fair Work Act 2009 (Cth). The primary issue before the court was whether Cacoutas had a reasonable explanation for the delay in filing his application and whether the application was meritorious. The court had to consider the length of the delay, the explanation provided, any prejudice to the respondent, and the merits of the application.

The court acknowledged that the delay in filing the application and the explanation provided were significant factors against granting an extension of time. However, it also considered the potential prejudice to the respondent, fairness, and the merits of Cacoutas’ proposed case. The court noted that while the delay was substantial, the evidence suggested that Cacoutas had an arguable ground for his claim, which weighed in favour of an extension of time. The court found that the application was not without merit and that granting the extension would not unduly prejudice HBO Accounting Pty Ltd.

After weighing all the factors, the court decided to grant the extension of time. The court was satisfied that the delay could be justified and that the application had reasonable prospects of success. Consequently, the time for filing the general protections court application was extended until the date of filing. HBO Accounting Pty Ltd was ordered to file a response within 14 days, and the matter was referred to mediation.

The final orders of the court were to extend the time for filing the general protections court application, require HBO Accounting Pty Ltd to file a response within 14 days, and refer the matter to mediation as is usual for cases of this nature. The court's decision was based on a balanced consideration of the length of the delay, the explanation provided, the potential prejudice to the respondent, and the merits of the application. The court found that granting the extension of time was appropriate in the circumstances of this case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It might well be that when Mr Ben Orlanski’s evidence is tested at trial, his explanation as to the reason for dismissal withstands scrutiny and the “reverse onus” imposed on HBO Accounting by s.361 of the Act, is discharged. However, and recognising that the proximity of the dismissal to the making of the inquiry might not be direct evidence of the alleged adverse action, when viewed in conjunction with the peremptory nature of the dismissal and the limited prior identification to Mr Cacoutas of issues that were said to inform that decision, it might arguably allow an inference to be drawn from those facts that it was the exercise of the workplace right (amongst other considerations) that gave rise to the dismissal. Whether the evidence gives rise to a reasonable and definite inference, and not merely to conflicting inferences of equal degrees of probability, or mere conjecture, is a matter which might be developed further at hearing when all of the evidence is in. For present purposes, however, the matters set out above might arguably give rise to such an inference. This is not to say that Mr Cacoutas will succeed at final hearing but rather that on a reasonably impressionistic examination of his case, he has identified an arguable ground. This weighs in favour of an extension of time within which to file the substantive application.CONCLUSION This matter is finely balanced. On the one hand, I have found that the length of delay and explanation weigh against the granting of an extension of time. On the other side of the ledger, the question of prejudice and considerations of fairness and the merits of the proposed case, weigh in favour of an abridgement. Taking all considerations into account, I am positively satisfied that the time for filing a general protections court application should be extended. Accordingly, there will be an order extending the time to commence proceedings in the Court until the date of filing. Noting that HBO Accounting has not filed a response, an order will be made requiring it to do so within 14 days. The matter will be referred to mediation as is the usual course for matters of this sort.

Ratio Decidendi

Legal Principle Established

HBO Accounting submits – beyond the matters identified in Mr Orlanski’s affidavit - that the following decisions, each of which have characteristics in common with this case, provide a useful guide as to the disposition of the application. These cases are: (a)Chou v Digital161 Pty Ltd [2021] FCA 640, where the applicant filed his application only one day out of time. The applicant subsequently argued that the reason for the delay was that he encountered difficulties in navigating the claim procedure and the Court’s processes as a self-represented litigant. As evidence, the applicant established that his attempts to lodge his application had been rejected three times. The Court found that without clear prospects of success, it could not be satisfied that it was appropriate to grant an extension of time. (b)Potts v Kings Warehousing Administration Pty Ltd [2014] FCCA 2671, where the applicant filed his application four days out of time and argued for an extension of time on the basis that he was not familiar with the Court’s processes, that he was waiting for additional information from the respondent and that his depression was a contributing factor. The Court did not consider any of the explanations to satisfactorily explain the delay, noting that most self-represented litigants are unfamiliar with Court processes and this was not a factor that weighed in favour of an extension of time.(c)Bird v Foreshew & Ors [2015] FCCA 3315, where the applicant sought an extension of time on the basis that he had been diagnosed with depression and anxiety. The Court found that those conditions did not satisfactorily explain the applicant’s inability to file on time and rejected the application for an extension of time.(d)Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, where the applicant filed four days out of time. He had made two failed attempts to file online and found the process confusing. Ultimately, he filed by posting his completed application from NSW to the FWA office in Canberra. It was found that the applicant had made a bona fide attempt to file his application before the 14-day time limit expired. This finding was confirmed when permission to appeal was later refused.(e)Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, in which the Fair Work Commission clarified the consideration that the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances that might excuse a delay in filing.CONSIDERATION As noted above, the factors which the Court considers when determining whether to grant an extension of time are not fixed. However, in circumstances where neither party has raised any additional matters for consideration, the Court will address the following factors:(a)length of the delay and the explanation (including the steps taken to pursue the matter further);(b)any prejudice which arises for the parties as a result of the delay; (c)fairness; and(d)the merits of the application.