Hennessy v Barminco Limited

[2022] FCA 9

FEDERAL COURT OF AUSTRALIA

Hennessy v Barminco Limited [2022] FCA 9

File number:

SAD 209 of 2021

Judgment of:

BESANKO J

Date of judgment:

14 January 2022

Date of publication of reasons:

18 January 2022

Catchwords:

PRACTICE AND PROCEDURE — Interlocutory application for extension of time in which to make application in the Court pursuant to s 370 of Fair Work Act 2009 (Cth) — where applicant filed Originating application in the Court — where respondent issued Interlocutory application seeking orders that Originating application be dismissed on basis that it was out of time — where Notice of filing and hearing attached to Originating application indicates lodgement 28 minutes out of time — where applicant’s solicitor deposed to belief that document in fact filed within time and/or any delay caused by solicitor’s error — whether appropriate to grant extension of time — order that time be extended

Legislation:

Fair Work Act 2009 (Cth) ss 365, 368, 370

Federal Court Rules 2011 (Cth) r 2.25

Division:

Fair Work Division

Registry:

South Australia

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

18

Date of hearing:

14 January 2022

Counsel for the Applicant:

Mr R Grealy

Solicitor for the Applicant:

Australian Law Partners

Counsel for the Respondent:

Mr N Ellery

Solicitor for the Respondent:

Corrs Chambers Westgarth

ORDERS

SAD 209 of 2021

BETWEEN:

ASHLEY HENNESSY

Applicant

AND:

BARMINCO LIMITED ACN 109 439 894

Respondent

ORDER MADE BY:	BESANKO J
DATE OF ORDER:	14 JANUARY 2022

THE COURT ORDERS THAT:

1.Pursuant to s 370 of the Fair Work Act 2009 (Cth), the time within which the Originating application in this proceeding be lodged is extended up to and including 22 November 2021.

2.Costs reserved.

3.The applicant have leave to amend the Originating application to the following effect: The heading on page 2, “Details of claim under the Fair Work Act”, be removed and in place thereof the words “Statement of Claim” appear.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1. This is an application under the Fair Work Act 2009 (Cth) (the FW Act) in which the applicant alleges that he was dismissed in contravention of a general protection provision by Barminco Limited. The application was preceded by an application to the Fair Work Commission (the FWC) for the FWC to deal with the dispute. That application was made under s 365 of the FW Act and involved an allegation made by the applicant that he had been dismissed by the respondent in contravention of Pt 3-1 of the FW Act. The FWC conducted a conference to deal with the dispute on 2 November 2021. By certificate dated 5 November 2021, and given pursuant to s 368(3)(a) of the FW Act, the FWC certified that it was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) had been unsuccessful.

2. The Originating application in this Court is dated 19 November 2021. The Notice of filing…