CFMEU v Form 700 Pty Ltd
[2017] FCCA 136
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFMEU & ANOR v FORM 700 PTY LTD & ORS | [2017] FCCA 136 |
| Catchwords: INDUSTRIAL LAW – General protections application – application to extend time to bring application – principles to apply – acceptable explanation for delay – representative error. – whether extension of time is appropriate. |
| Legislation: Fair Work Act 2009, ss.368, 370 |
| Cases cited: Chand v Soft Star Pty Ltd [2016] FCCA 121 |
| First Applicant: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Second Applicant: | JESSE NIETVELT |
| First Respondent: | FORM 700 PTY LTD |
| Second Respondent: | WASYL ROSATI |
| Third Respondent: | STRIDE SURVEY PTY LTD |
| Fourth Respondent: | CRAIG NEWTON BUTCHER |
| File Number: | MLG 2020 of 2016 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | On the papers |
| Date of Last Submission: | 13 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Solicitors for the Applicants: | Construction, Forestry, Mining and Energy Union (CFMEU) |
| Solicitors for the Respondents: | Form 700 Pty Ltd – In House Counsel Tony James Chay |
ORDERS
By consent, Order 3 of the orders made 9 November 2016 be vacated.
Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (“FW Act”), the time within which the applicants 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 FW Act on 2 September, 2016 be extended to and include 20 September, 2016.
The respondents file and serve a response and defence answering Part G Contraventions alleged as set out in the Applicants’ Form 2 filed 20 September 2016 on or before 3 March 2017.
The proceedings shall be the subject of mediation to be held on a date to be fixed with the mediation to be conducted by a Registrar of the Court by the middle of April 2017 and the matter be adjourned for further directions on 28 April 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2020 of 2016
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
First Applicant
| JESSE NIETVELT |
Second Applicant
And
| FORM 700 PTY LTD |
First Respondent
| WASYL ROSATI |
Second Respondent
| STRIDE SURVEY PTY LTD |
Third Respondent
| CRAIG NEWTON BUTCHER |
Fourth Respondent
REASONS FOR JUDGMENT
Before the Court is an application for an extension of time to allow the applicants to bring proceedings against the respondents for contraventions of the general protection provisions of the Fair Work Act 2009 (Cth) (the FW Act).
On 20 September 2016 the Construction, Forestry, Mining and Energy Union (“the first applicant”) and Mr Jesse Nietvelt (“the second applicant”) filed a general protections application naming as the respondents Form 700 Pty Ltd (“the first respondent”), Wasyl Rosati (“the second respondent”), Stride Survey Pty Ltd (“the third respondent”) and Craig Newton Butcher (“the fourth respondent”).
The first applicant is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth), an industrial association as defined by s.12 of the FW Act, entitled to represent the second applicant’s industrial interests and make an application to the Court.
The second applicant, who is a member of the first applicant, is 29 years of age and lives in Victoria. He says he worked as a surveyor for the first and/or the third respondents from November 2014 until May 2016. After he finished working for the respondents, there were proceedings in the Fair Work Commission (the Commission) brought on the second applicant’s behalf. Accompanying the application filed in this Court is a certificate under section 368 of the FW Act which was dated 2 September 2016. The certificate provided that:
“An application pursuant to s.365 of the Fair Work Act 2009
(the Act) was made by Mr Jesse Nietvelt alleging he was dismissed by Form 700 Pty Ltd T/A Form 700; Mr Wasyl Rosati; Stride Survey Pty Ltd T/A Stride Surveying; Mr Craig Butcher in contravention of Part 3-1 of the Act.
The Fair Work Commission conducted a conference to deal with the dispute on 19 August 2016.
Pursuant to s.368 of the Act, the Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
IMPORTANT NOTE:
The person dismissed or an industrial association that is entitled to represent the industrial interests of the person dismissed has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Circuit Court of Australia for a civil remedy order, unless the court extends the time for making such an application. For terminations that took effect after 1 January 2014 an application may also be made to the Fair Work Commission to arbitrate the matter by consent of both the parties. This application must also be made within 14 days of this certificate unless the Fair Work Commission extends time for making such an application.”
Pursuant to s.370(a)(ii) of the FW Act a general protections court application must be made within 14 days after the s.368 certificate was issued, or within such further time as the Court may allow. Given the issue date of the certificate in this case the application was filed 4 days late.
The application filed on 20 September 2016 (that also sought an interim order for an extension of time) was accompanied by a form 2 which inter alia particularised the allegations of contraventions of the FW Act by the respondents and the remedies that were sought. Also filed on behalf of the applicants on 20 September 2016 was an affidavit of Mr Joel Winters (who was an in house lawyer employed by the first applicant) affirmed 20 September 2016.
The application was given 9 November 2016 as a first court date.
On 10 October 2016 a response was filed on behalf of the respondents.
The response detailed the position of the respondents which was that the Court did not have jurisdiction as the application was filed out of time. The position of the respondent was that:
“5. The Application herein was not filed within the 14 daytime prescribed by section 370(a)(ii) of the Act and in consequence thereof, this honourable Court lacks jurisdiction in respect of the Application absent an order extending the time for the applicants to file the same.”
First Court date
On 9 November 2016 Ms Kelly of Counsel appeared on behalf of the applicants and Mr Chay, Solicitor appeared on behalf of the respondents. The following orders were made:
“ THE COURT ORDERS THAT:
1. By no later than 16 November 2016 the applicants file and serve any further affidavit material in support of the application for an extension of time and an outline of submissions in support of the application.
2. By no later than 7 December 2016 the respondents file and serve any affidavit material on which they intend to rely and an outline of submissions.
3. The proceeding be listed for hearing on the issue of whether time should be extended for the filing of the application and form 2 filed 20 September 2016 in the Federal Circuit Court of Australia at Melbourne at 10:00 am on 23 February 2017.
4…”.
The parties subsequently filed material in accordance with those orders to which I will turn presently. The parties then filed a minute of consent orders on 14 December 2016 which were:
1. Order 3 of the orders made …on 9 November 2016 be vacated.
2. The application for an extension of time pursuant to rule 3.05 of the Federal Circuit Court Rules, be heard on the papers.
3. In the event that the application for an extension of time is granted, the respondents file and serve a response and defence answering Part G Contraventions alleged as set out in the Applicant’s Form 2 filed 20 September 2016 on or before 16 January 2017.
4. The proceedings shall be the subject of mediation to be held on a date to be fixed with the mediation to be conducted by a Registrar of the Court…
Given the agreement of the parties embodied in the above minute the application to extend time was considered on the papers in light of the following submissions of the parties.
Submissions
As noted earlier there had been filed on behalf of the applicants the affidavit of Mr Winters (referred to above) in support of their application for an order that the Court extend time for the filing of the application. In his affidavit Mr Winters deposed that:
“1. I am an in-house lawyer with the Construction, Forestry, Mining and Energy Union (the first Applicant). I have the care and conduct of this matter on behalf of the first and second applicants.
2. Save where otherwise stated, I make this affidavit on the basis of my knowledge and belief and on the basis of any documents referred to in this affidavit. Where I have relied on information provided to me by others, I believe that information to be true.
3. On 16 September 2016 I was unable to attend work due to illness.
4. In my absence, I directed Ms India Shearer-Boyd, legal assistant for the first applicant, to file the claim in this matter. The claim was required to be filed by not later than 16 September 2016. I had not caused the claim to be filed earlier because I was waiting on advice from Counsel about a matter related to the claim.
5. I am informed by Ms Shearer-Boyd that she attempted to file the claim.
6. At 4.39pm on 16 September 2016 I received an email from eLodgment [email protected] stating that the lodgement had been rejected as it was not substantially complete. Now produced and shown to me and marked JW-1 is a copy of that email.
7. At 6.14pm on 16 September 2016 I sent a return email to eLodgment admin(@,fedcourt.gov.au stating that I believed that the application had been lodged again. Additionally, I sought confirmation that the lodgement had been accepted. Now produced and shown to me and marked JW-2 is a copy of that email.
8. At approximately 9.30am on 19 September 2016 Ms Shearer- Boyd informed me that the Federal Court Registry had called to confirm that we had only filed the Form 2 — Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection and not an application as is required by the Federal Circuit Court Rules 2001. Ms Shearer-Boyd informed me that the Registry had cancelled all pending applications. At the time of directing Ms Shearer Boyd to file the claim, I did not understand that it was also necessary to file an application.
9. At approximately 10.17am on 19 September 2016 Ms. Kristen Reid, an in-house lawyer with the Construction, Forestry, Mining and Energy Union (the first Applicant), filed the Application and supporting Form F2 document.”
The applicants also relied on the affidavit of the second applicant and submissions filed on 16 November 2016 which were:
“1. The applicants seek an order pursuant to s 370 of the Fair Work Act 2009 (Cth) extending the time for filing a general protections court application.
Procedural history
2. On 25 May 2016 the applicants filed an application in the Fair Work Commission alleging that the second applicant, Mr Nietvelt, had been dismissed in contravention of a general protection and further alleging that he was not paid, during the course of his employment, in accordance with the applicable industrial instrument.
3. That application was the subject of conciliation in the Fair Work Commission on 19 August 2016. The conciliation did not resolve the dispute and on 2 September 2016 Commissioner Cirkovic issued a certificate under s 368 of the Fair Work Act 2009 (Cth).
4. At all times, the applicants were each represented by Mr Joel Winters, in-house solicitor at the CFMEU.
5. On 14 September 2016 Mr Winters provided the second applicant with a draft form F2. Also on 14 September 2016, the second applicant had a telephone discussion with Mr Winters in which he instructed Mr Winters to file the application.
6. On 16 September 2016, Mr Winters was absent from work due to illness. In his absence, he instructed a legal assistant employed by the CFMEU to file the Form F2. At the time of directing the CFMEU legal assistant to file the claim, Mr Winters did not understand that it was also necessary to file an application. That employee attempted to do so by way of electronic filing shortly after 4pm on 16 September 2016. Being after 4pm, the application was then out of time.
7. At 4.39pm on 16 September 2016 Mr Winters received an email from the email address [email protected] stating that the lodgement had been rejected as the application was not substantially complete. The application was not substantially complete because it included only a form F2 and not an originating application.
8. At approximately 9.30am on 19 September 2016 a legal assistant employed by the CFMEU informed Mr Winters that the Federal Court Registry had called to confirm that the CFMEU had only filed the Form 2 — Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection and not an application as is required by the Federal Circuit Court Rules 2001. That legal assistant informed Mr Winters that the Registry had cancelled all pending applications.
9. At approximately 10.17am on 19 September 2016 Ms. Kristen Reid, an in-house lawyer with the Construction, Forestry, Mining and Energy Union (the first Applicant), filed an application and supporting Form F2 document. On 20 September 2016, Mr Winters affirmed an affidavit, explaining the reasons for the delay in filing the application. Ultimately, the Registry accepted an application on 20 September 2016. That application is the subject of these proceedings.
The application was accompanied by the affidavit of Mr Winters, and a form F2.
The application
10. The application seeks both final and interim relief. By way of interim relief, it seeks an order under the Federal Circuit Court Rules 2001 extending the time for filing the general protections court application.
11. The appropriate form of order is that the Court extends the time for filing a general protections court application under s 370 of the FW Act. The incorrect form of order in the application does not make it a nullity, nor does it deprive the Court of jurisdiction to hear the application. By rule 4.01, a proceeding must be started by filing an application in accordance with the approved form. The application in this proceeding was made in the proper form, being an application in the Fair Work Division of the Court. The proceeding seeks relief that this Court has power to grant (albeit not in this case). There is no question that the jurisdiction of the Court has been properly enlivened. If it is accepted that jurisdiction has been enlivened, it follows that the Court has ample power to make the order required to be made.
12. Its jurisdiction having been properly invoked, the Court is required to deal with the application in accordance with the Federal Circuit Court of Australia Act 1999 (Cth) and the Rules. Section 3 of the Act provides that it is an object of the Act to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power. Moreover, by s 42 of the Act, in proceedings before it, the Federal Circuit Court of Australia must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
13. In support of the statutory object and the injunction in s 42, by rule 1.06 the Court may dispense with compliance with the Rules. By Rule 16.01 the Court may, at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process. Thus, where the jurisdiction of the Court has been enlivened, the Court has ample power to make the order required to be made.
14. In the present case, and in accordance with rules 4.01(2) and 4.01(3), the application includes both an application for final orders and interim orders. In accordance with r 4.05, the application was filed with the supporting affidavit of Mr Winters. An application for an extension of time has been made. The application is properly before the Court and within its jurisdiction. The Court has ample power to make the order required to be made, being an order under s 370 of the FW Act extending the time for filing a general protections court application.
The substantive application
15. The applicants seek an order extending time to file a general protections court application. By operation of s 370 of the FW Act, the applicants had 14 days to file an application in this Court, or the Federal Court of Australia. That 14 day period expired on 16 September 2016.
Principles
16. Section 370 of the FW Act provides:
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application 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; or
(b) the general protections court application includes an application for an interim injunction.
17. The extension of time required by s 370 is an extension of time to file the general protections court application.
18. The applicant bears the onus of satisfying the Court that it should exercise its discretion to extend time for filing the application. When considering whether it exercise its discretion, the Court may take in to account the ‘relatively short’ limitation period of 14 days fixed by the Parliament under s 370 of the Act: Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [5] per White J.
19. It is accepted that, while not binding on the Federal Circuit Court, the principles set out in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 are regularly applied by the Federal Circuit and constitute relevant criteria to be taken in to account in the exercise of its discretion: Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 246 FLR 430; (2011) 201 IR 327. The decision in School Bus Contractors Pty Ltd has been regularly applied by this Court: see Owen v Cudeco Ltd [2013] FCCA 1827 at [7] per Judge Driver, Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472 at [34] per Judge Lucev.
20. In Brodie-Hanns the criteria were stated as follows:
(a) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
(b) Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(c) Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
(d) The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
(e) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(f) Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
Explanation for the delay
21. The delay was occasioned by representative error.
22. For more than 100 years, Australian courts have accepted the principle that a client should not suffer by reason of an error made by his or her representative: see Stollznow v Calvert [1980] 2 NSWLR 749, Andresakis v Alexus Holdings Pty Ltd [2006] NSWCA 294; (2006) 68 NSWLR 507, Burgoine v Taylor (1878) 9 Ch D 1, R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087, Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, Jess v Scott (1986) 12 FCR 187.
23. Where the error arises by conduct of a representative, it would be in error to treat the error of the representative as being the error of the client: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344.
24. The principle is well-accepted in this Court: see Stephens v Australian Postal Corporation (2012) 202 IR 437, [2010] FMCA 1012 and Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344. In Stephens v Australian Postal Corporation (2012) 202 IR 437, [2010] FMCA 1012 Smith FM observed that authorities in this area suggest that 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: at 441.
25. In this case, the delay was occasioned solely by representative error. Mr Winters had the care and conduct of the proceeding on behalf of both applicants. He had clear instructions to file the application. He did not do so for the reasons set out in his affidavit.
26. It is necessary to draw a distinction between delay that is wholly occasioned by the conduct of a representative, and delay to which the client contributed. In this case, the first and second applicants are wholly blameless. No responsibility for the delay in filing the application can be attributed to either of them. The second applicant responded in a timely way to Mr Winters’ request for instructions. The instructions requested were clearly and promptly given. To refuse an extension of time would be to visit the error of Mr Winters on the applicants who are blameless.
27. As with Chand v Soft Star Pty Ltd [2016] FCCA 121 the representative error was not a particularly serious one. The representative was absent from work due to illness. That was a circumstance beyond his control. He also failed to properly understand the technical requirements for filing an application. He instructed his legal assistant to file the application. When the deficiencies were drawn to his attention, he promptly took steps to resolve them.
28. In these circumstances, there is an acceptable explanation for the delay and, consistent with 100 years of authority, the Court should not visit the consequences of the delay on the applicants.
Action taken by the applicants to contest the termination
29. The second applicant contested his termination by seeking legal advice from Slater & Gordon Lawyers and engaging Mr Winters of the CFMEU to assist him. Both applicants contested the termination by making application to the Fair Work Commission and by participating in conciliation before the Commission. The applicants further contested the application by providing Mr Winters with instructions to prepare an application to this Court, with instructions as to the content of the F2 (in the case of the second applicant) and instructions as to the filing of the application (in the case of both applicants). The applicants have taken all reasonable steps to contest the termination. The respondents have been on notice at all times that the applicants were contesting the second applicant’s dismissal.
Prejudice
30. An application for an extension of time to file the proceeding was ultimately filed two business days after the expiration of the 14-day period fixed by the Parliament. The application was filed within the usual time for service with the effect that there was no delay in the application coming to the attention of the respondents. The originating application was filed with an affidavit explaining the delay and a copy of a Form F2. The respondents have therefore been on notice of the case against them.
31. The lack of prejudice is not, of itself, a reason to exercise discretion to extend time. Where there is no prejudice to the respondents, this is a neutral consideration.
Merits of the substantive application
32. At this early stage in the proceeding, no conclusive view as to the merits can be formed. However, on the basis of the F2 filed with the application, the applicants establish the essential criteria for a case of this kind including:
(a) the employment of the second applicant;
(b) the relevant industrial instruments;
(c) the inquiries and complaints made by the second applicant about his employment;
(d) the second applicant’s status as a member of the CFMEU; and
(e) the second applicant’s dismissal from his employment.
33. If the applicants can make good those matters by way of evidence, the claim is capable of succeeding. That is particularly so because the applicants have the benefit of s 361 of the FW Act which creates a statutory presumption as to the reason for the second applicant’s dismissal. At this early stage, all that can be said is that the claim is capable of succeeding. That weighs heavily in favour of an extension being granted.
Fairness
34. The criterion of fairness is concerned with a comparison as between the applicants and other persons in their position. Insofar as the second applicant is concerned, persons in his position are able to have their dispute heard and determined by the Court. It would be manifestly unfair to the second applicant to be deprived of his right to pursue his claim in circumstances where other applicants are able to do so. The criterion of fairness weighs in favour of the extension being granted.
Conclusion
35. In the present case, the delay in filing the application was wholly due to representative error. For the reasons given, the deficiencies in the form of order sought extending time do not deprive this Court of jurisdiction to grant the extension. To the extent that the Brodie-Hanns factors operate in this case, they weigh in favour of the extension being granted. The principles attaching to representative error weigh heavily in favour of the extension be granted.
36. The appropriate course is for the Court to extend the time prescribed under s 370 of the filing of a general protections court application and for appropriate consequential orders to be made.”
The respondents’ submissions filed 13 December 2016 were:
“1. In consequence of and having regard to the further affidavit material filed by the Applicants, the Respondent’s do not oppose the Applicants’ application for an extension of time for filing of the Originating Process.”
Approach to application for extension of time
In Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490 the Court at paragraphs [9]-[17] referred to the relevant principles to be applied when considering an application to extend time as follows:
“Relevant provisions
9.In Whitfield v One Key Resources Pty Ltd [2014] FCCA 553[1] Judge Lucev noted that the Fair Work Amendment Act 2013 (Cth)[2] effected amendments to the provisions of the Fair Work Act dealing with commencement of general protections court applications. His Honour noted the amendments did not change the substance of the relevant provisions.
[1] See para 4
[2] “FW Amendment Act”.
10.The relevant provisions pertaining to the application are contained in the Fair Work Act. Section 370 now provides:
“A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application 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; or
(b)the general protections court application includes an application for an interim injunction.
Note 1:Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)),
a general protections court application cannot be made in relation to the dispute (see section 727 and 728).Note 2:For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
11.In Brodie-Hanns v MTV Publishing Ltd[3] (“Brodie-Hanns”), the Industrial Relations Court of Australia outlined the principles which relate to the exercise of the discretion. Whilst the list is not exhaustive nor binding, it is instructive of the relevant principles to be applied.[4] In Transport Workers’ Union v School Bus Contractors Pty Ltd
[2011] FMCA 28 Judge Lucev considered the provisions of the Fair Work Act in place at that time in relation to extension of time for bringing a general protections court application. In Clarke v Service to Youth Council Incorporated [2013] FCA 1018 the Federal Court having referred to the discussion of those provisions in the above mentioned decision described the reference to the criteria in Brodie-Hanns “…as a reference to the kinds of considerations which may be relevant.”[5]
12.Those principles include special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay.
13.Action taken by the applicant to contest the termination, other than applying under the Fair Work Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
14.Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
15.The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
16.The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
17.Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
[3] (1995) 67 IR 298
[4] see Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28
[5] Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at para 5 per White J
The granting of the extension is a discretionary exercise. The discretion is unfettered, but it is to be exercised judicially by identifying matters relevant to the discretion in the particular case and weighing those matters. The authority that I have referred to makes clear that matters relevant to the exercise of that discretion include whether there is an acceptable explanation for the delay, whether the applicant has acted without delay to contest the termination, whether there is unlikely to be prejudice to the respondent by the grant of any extension of time, the merits of the substantive application and any other matters that may be relevant.[6]
[6] see also paragraphs 18-21 in Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28
Representative error
In support of the submission (that there is an acceptable explanation for the delay in this matter) the applicants rely on the error of their representative referred to in the affidavit of Mr Joel Winters as set out above.
The decision of Clark v Ringwood Private Hospital (1997) 74 IR 413, (“Clark”) provided guidance on the relevance of representative error in extension of time cases under previous legislation.
In Clark the then Australian Industrial Relations Commission (at page 418) set out the following guidelines to be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay:
“1. Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
2.A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
3.The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application.
For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps in inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.4.Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s.170CE(8).”
In McPaul v CPC Engineering Pty Ltd [2013] FMCA 71 (“McPaul”) Lucev FM (as His Honour then was) considered the issue of representative error in the context of an application for an extension of time.
In doing so McPaul followed Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28 and the principles referred to in Brodie-Hanns. McPaul was also referred to in Whitfield v One Key Resources Pty Ltd [2014] FCCA 553 (“Whitfield”).
In this case, the reason advanced by the applicants for the delay is an error by the representative. Given the relevant provisions of the FW Act it is appropriate to consider the application for an extension of time by reference to the principles in Brodie-Hanns. In relation to at least the first of those principles, set out above (whether there is an acceptable explanation for the delay), I intend to do so mindful of the approach set out in Clarke v Service to Youth Council Incorporated [2013] FCA 1018, McPaul and Whitfield.
Consideration
I now turn to consider this application in the context of the principles set out in Brodie-Hanns having taken into account the submissions of the parties:
Acceptable explanation
The primary position set out in section 370 of the FW Act is that the time limit should be complied with. As set out in the authorities referred to above, it falls to the applicants to persuade the Court to exercise the discretion in their favour. In this case on the evidence there is clear credible evidence that the error of the representative provides an adequate explanation for the delay.
Had the correct application required by the Federal Circuit Court Rules 2001 been filed at the same time as the Form 2, the application would have been filed within specified time set out in section 370 of the FW Act. The affidavit of Mr Winters makes this clear.
Action taken by the applicants
The material before the Court makes clear the second applicant took steps to actively contest the termination almost as soon as it occurred. He acted in a timely manner throughout the proceedings in the Commission, provided instructions to file the notice of election and to have proceedings brought in this Court. I am satisfied that the delay in making the application to this Court was by reason of representative error and not due to any inaction or fault by the second applicant.
Prejudice to the respondents
Having regard to the period of delay in this case (i.e. 4 days)
I accept that it is unlikely there would be any prejudice to the respondent. On the basis of the material contained in the affidavits referred to above the respondents were aware the termination was being contested.
The application (which also sought an order to extend time) was filed only 4 days beyond the 14 days mentioned in section 370(a)(ii) and in the circumstances, I am not satisfied this would weigh against granting the extension.
Absence of prejudice to respondents
As was noted in Brodie-Hanns the mere absence of prejudice to the respondents (who don’t oppose the application to extend time) is an insufficient basis to grant an extension. However, that is not the only issue here for the reasons set out above.
Merits of substantive application
The Court is cognisant of the reverse onus of proof contained in Part 3-1 of the FW Act. As such, it is not possible to say that the application is without merit.
Considerations of fairness
The Court must weigh considerations of fairness as between the applicants, the respondents and also take into account the public interest (see Malik v Paul Albert, Director General Department of Education of Western Australia [2004] WASCA 51 (1 April 2004)). There is nothing to indicate that this last factor, as set out in Brodie-Hanns, weighs against this application.
Conclusion
The Court has taken into account the following:
i)the fact that the time involved is only four days;
ii)the principles set out in Brodie‑Hanns; and
iii)the reason for the delay against the guidelines set out in Clark, McPaul, Whitfield and the submissions of the parties.
In accordance with section 370(a)(ii) of the FW Act I am satisfied it is appropriate to extend time for the filing of the application.
I will therefore make the orders as set out at the beginning of these reasons.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 2 February 2017
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