Collard v Trustee for Alderson Business Trust
[2024] FedCFamC2G 682
•1 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Collard v Trustee for Alderson Business Trust [2024] FedCFamC2G 682
File number(s): MLG 180 of 2024 Judgment of: JUDGE J YOUNG Date of judgment: 1 August 2024 Catchwords: INDUSTRIAL LAW – General Protections – application filed out of time – application for extension of time – matters relevant to exercise of Court’s discretion –applicant’s evidence contradictory and inconsistent – found no acceptable explanation for the delay in filing – extension of time refused. Legislation: Fair Work Act 2009 (Cth) pt 3-1, ss 341, 352, 365, 368, 368(3)(a), 370, 370(a)(ii)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 2.05, 2.06, 2.08(2), 30.04
Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of last submission/s: 22 April 2024 Date of hearing: Determined on the papers Place of hearing: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the Respondent: Ms Evans of BSP Lawyers ORDERS
MLG 180 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BENJAMIN COLLARD
Applicant
AND: THE TRUSTEE FOR ALDERSON BUSINESS TRUST
Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application filed 30 January 2024 be dismissed.
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 J YOUNG:
Before the Court is an Application for an extension of 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 dismiss the application for an extension of time.
CONTEXT
In the substantive Application, the applicant contends that he was employed by the respondent from 21 September 2022 until 21 November 2023. The applicant contends that the respondent dismissed him from employment in contravention of ss 341 and 352 of the Act.
In support of his request for an extension of time for filing, the applicant filed the following material:
(a)Application – Fair Work Division;
(b)Form 2 – Claim under the Fair Work Act 2009, alleging dismissal in contravention of a general protection filed 30 January 2024 (Form 2);
(c)affidavit of the applicant filed 15 March 2024;
(d)s 368 Certificate and additional documents filed 28 March 2024; and
(e)written submissions filed 28 March 2024.
The respondent filed an outline of written submissions on 22 April 2024.
Relevant rules for the filing of documents
Rule 2.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), relevantly, provides as follows:
How documents may be filed
(1)A document must be filed by electronic communication as permitted by the Court, unless it is not reasonably practicable to do so.
(2)If it is not reasonably practicable to file a document by electronic communication in accordance with subrule 2.08(2), it may be filed, in order of preference, by:
(a) emailing it to the registry; or
(b) delivering it to the registry; or
(c) sending it to the registry by post; or
(d) faxing it to the registry.
(3) A document is filed when:
(a) the filing fee has been paid (or an exemption or deferral applies); and
(b)the document is accepted for filing by the Registry Manager and sealed with the seal of the Court or marked with the stamp of the Court, as required by Division 2.4.
…
(4)However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:
(a)if the whole document is received by 4.30 pm on a day the Registry is open for business—on that day; or
(b) in any other case—on the next day the Registry is open for business.
Rule 2.06 of the Rules provides:
Registrar may refuse to accept document
A Registrar may refuse to accept a document for filing if:
(a)the Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or
(b)the document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or
(c)the rules relating to the electronic filing of documents have not been complied with.
Rule 2.08(2) of the Rules relevantly provides that:
(2) A document sent to a Registry for filing by electronic communication must:
(a)be lodged using eLodgment at and
(b) be in an electronic format approved for the Registry; and
(c) be in a form that complies with rule 2.04; and
(d) be able to be printed with the content, and in the form, created.
Note: Approved electronic formats are listed on the Federal Court website at >
Rule 30.04 of the Rules provides:
Application in relation to dismissal from employment in contravention of a general protection (Fair Work Act, subsection 539(2), table item 11)
An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must:
(a) be in accordance with the approved form; and
(b) be accompanied by:
(i) a claim in accordance with the approved form; and
(ii) unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under the Fair Work Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
…
Note 3: An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim (see rule 4.04).
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 s 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 15 January 2024 the Commission issued a s 368 Certificate confirming that the Commission was satisfied 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.
The applicant asserts he had completed the Application and was ready to lodge it on 29 January 2024, however his initial lodgement was rejected as he was required to pay $868.30 for the filing fee. The applicant further asserts a police officer refused to authorise a fee waiver form, and that a justice of the peace was unavailable “on that day” and as such he accepted the “first available time” at 9.30am on 30 January 2024.
The Application was lodged on 30 January 2024 at 12.15pm and accepted for filing on the same date at 2.58pm.
As noted above, the s 368 certificate was issued on 15 January 2024. The Application was therefore required to be filed by 29 January 2024. The Application was lodged and accepted for filing on 30 January 2024.
Accordingly, the Application was filed 1 day after the expiry of the statutory timeframe. The applicant concedes this.
WHETHER TO ALLOW AN EXTENSION OF TIME FOR FILING
Section 370(a)(ii) of the Act vests in the Court a broad general discretion to grant an extension of time if it deems it appropriate to do so.
In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns) at 299-300, Marshall J set down principles relating to the exercise of the Court’s discretion to extend time beyond the prescribed period. The principles, regularly applied in this jurisdiction, are as follows:
(1)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;
(2)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;
(3)prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time;
(4)the mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time;
(5)the merits of the substantive application may be taken into account in determining whether to grant an extension of time; and
(6)consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.
The considerations identified in Brodie-Hanns are not an exhaustive list of matters the Court may have regard to, and the Court may consider any other matters it considers relevant to the request that it exercise its discretion to grant an extension: Clarke v Service to Youth Council Incorporated [2013] FCA 1018.
The onus falls on the applicant to satisfy the Court that grounds exist for exercising the Court’s discretion to grant an extension of time in his favour, and the respondent bears 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 Toohey and Gummow JJ at [547].
The Brodie-Hanns principles were more recently considered and applied by Justice Burley in Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [147] (Murdoch).
Brodie-Hanns principles
Length and explanation for the delay
The application was filed 1 day after the expiry of the statutory timeframe.
As set out above, the applicant asserts he lodged the Application on 29 January 2024 however this was rejected as he was required to pay the filing fee. The applicant relies on annexure A-1 of his affidavit and the additional documents filed on 28 March in support of his assertions. As to these documents, Annexure A-1 shows lodgement details of an Application lodged on 30 January 2024 at 10.22am. It further shows that the lodgement was processed on the same date at 11.19am, and there is a “Registry Message” saying “please see the email sent from [email protected] for information as to why your application was rejected”. The additional documents show an email from Registry sent at 11.19am saying that the lodgement had been rejected “due to amendments required and to ensure that the correct fee ($83.30) is charged”. The applicant replied to that email at 12.20pm on that same day saying, relevantly:
I have decided to skip the fee waiver and just pay the $83.30.
If I knew this I would have submitted yesterday. I was very unfortunate that the authorised person declined to sign as it was a federal matter. Please take this into consideration for me. This has been a very hard time for my family and I.
As noted above, the Application was ultimately lodged on 30 January 2024 at 12.15pm and accepted for filing on the same date at 2.58pm. Accordingly, the documents relied upon by the applicant do not demonstrate any attempt by the applicant to lodge the Application on 29 January 2024 as asserted and therefore do not provide an explanation for the delay in lodgement.
The applicant asserts in his affidavit that he “understands the importance of adhering to the court’s timeline in legal proceedings” and that “it was an oversight on my behalf not reading and comprehending the Certificate in its entirety”.
The applicant further asserts that he has been “under an immense amount of stress” dealing with his claim, job-seeking, and a WorkSafe claim. He asserts he has “emotional and mental trauma” as a result of the circumstances of his employment termination and that this has greatly affected his mental health and every-day functioning in society. He asserts he has sought psychological assistance for his symptoms of depression, anxiety and post-traumatic stress and has been in financial hardship since his employment was terminated. Finally, he asserts that he is unable to afford representation.
As to these assertions, firstly, there is no probative evidence before the Court of the applicant’s asserted mental health concerns, diagnosis or treatment. Nor is there any probative evidence before the Court of the applicant’s asserted financial hardship. Secondly, the applicant’s evidence that the late lodgement was an “oversight on my behalf not reading and comprehending the Certificate in its entirety” appears to contradict his earlier evidence that had he been aware of the amendment required and the correct fee he would have filed the application on 29 January 2024. Thirdly, the material before the Court does not support the applicant’s assertion that he first filed the Application on 29 January 2024 and I consider this to be a significantly relevant matter. As Burley J said in Murdoch at [145] “a party seeking the leave of the Court for an extension of time under s 370 of the FW Act must be frank as to his or her position.” I do not consider that the applicant has been frank in this regard. Finally, as to the lack of legal representation, this cannot provide an acceptable explanation for delay. To find otherwise would render the legislated time frames nugatory in all cases where an applicant is not legally represented.
Accordingly, whilst the delay is short, there is no acceptable explanation for the delay in filing and the applicant’s evidence as to this is contradictory and inconsistent. The applicant’s lack of frankness as to this matter is a relevant consideration.
This consideration weighs heavily against the grant of an extension of time for filing.
Action taken by the applicant to contest the termination
The applicant’s employment was terminated on 21 November 2023. On 30 November 2023, the applicant wrote to the respondent contesting the basis of his termination, both as to the allegations of inappropriate behaviour and the asserted failure to comply with a reasonable and lawful direction.
Accordingly, the applicant has taken steps, other than by making the application to the Commission, to contest the termination of his employment.
This weighs in favour of the discretion to extend the time for filing.
Prejudice and fairness
The delay is short. The respondent concedes, correctly in my view, that the delay in filing does not give rise to any particular prejudice to it. However, the absence of prejudice in and of itself is not a matter weighing in favour of the exercise of the discretion. I consider it to be a neutral consideration in the present matter.
As to fairness as between the applicant and a person in a like position, the applicant has not identified any persons in respect of whom a finding of comparative fairness could be made nor brought any relevant case law to the Court’s attention. This consideration therefore does not weigh in favour of the grant of an extension of time. I consider it to be a neutral consideration in the present matter.
Merits of the substantive claim
Whilst the Application is somewhat unparticularised, in summary, the applicant alleges that the respondent dismissed him in breach of ss 341 and 352 of the Act and failed to comply with certain award entitlements and conditions. On the limited material before the Court it appears that the respondent contends that it dismissed the applicant due to allegations of inappropriate conduct and for failure to obey a reasonable and lawful direction. Adverse action appears therefore not to be contested. At issue is whether that adverse action was for a prohibited reason and therefore in breach of Part 3-1 of the Act. On the material currently before the Court it is not possible to form any concluded view as to the merits of the Application. Evidence of both parties would need to be filed and tested under oath.
Accordingly, I consider the merits of the Application to be a neutral consideration in the present matter.
DISPOSITION
The time limit that applies to an application under s 370 of the Act reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where it may be appropriate for an extension of to be granted to allow a late Application.
I have carefully considered and weighed the relevant factors which inform my discretion to extend time under s 370 of the Act. I have taken into account that one consideration weighs in favour of the grant of an extension of time and that the other considerations are neutral. I have taken into account that the applicant is self- represented. However, I am not satisfied in all the circumstances that it is appropriate to extend time. In my view, the absence of any acceptable explanation for the delay and the applicant’s lack of frankness in relation to that matter mean, when taken in conjunction with the other considerations, that the Court cannot be satisfied that it is appropriate to extend time.
Accordingly, the Application for an extension of time is dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 1 August 2024
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