Hole v Secretary of the Department of Health and Human Services, on behalf of the State of Victoria

This case concerned an application by Damien Hole (the applicant) for an extension of time to file a general protections court application against the Secretary of the Department of Health and Human Services, on behalf of the State of Victoria (the respondent). The applicant alleged that his dismissal from employment as a Child Protection Practitioner was in contravention of Part 3-1 of the *Fair Work Act 2009* (Cth). The application was filed with the Federal Circuit Court of Australia more than 18 months after a certificate was issued by the Fair Work Commission (FWC) indicating that attempts to resolve the dispute had been unsuccessful.

The central legal issue before the Court was whether to grant the applicant an extension of time pursuant to section 370(a)(ii) of the *Fair Work Act 2009* (Cth) to file his general protections court application. This provision requires that such an application be made within 14 days of the FWC issuing a certificate, or within a period allowed by the court. The Court was required to consider the principles governing the exercise of this discretion, including the need for an acceptable explanation for the delay, the actions taken by the applicant to contest the termination, any prejudice caused to the respondent by the delay, and the merits of the substantive application.

The Court reasoned that while the applicant had taken steps to contest his dismissal initially, there was no acceptable explanation for the significant delay of 18 months after the FWC certificate was issued and before the court application was filed. The applicant's reliance on his former solicitors' failure to lodge the paperwork did not account for his own inaction for a substantial period. Furthermore, the Court found that the delay had caused significant prejudice to the respondent, particularly concerning the availability and recollection of key witnesses, including the decision-maker regarding the termination. The Court noted that the applicant had been made aware of the time limits and the possibility of seeking an extension, yet still delayed in filing the application. Applying the principles established in cases such as *Brodie-Hanns v MTV Publishing Ltd* and *Brisbane South Regional Health Authority v Taylor*, the Court concluded that the applicant had not satisfied the onus of demonstrating that an extension of time was warranted.

Ultimately, the Court ordered that the application for an extension of time be refused. Consequently, the applicant's general protections court application was dismissed.