Jafari v Higgins Coatings Pty Ltd

Case •

[2023] FedCFamC2G 261

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Jafari v Higgins Coatings Pty Ltd [2023] FedCFamC2G 261

File number(s): MLG 2253 of 2022
Judgment of: JUDGE MANSINI
Date of judgment: 6 April 2023
Catchwords: INDUSTRIAL LAW – general protections court application – application filed out of time – application for extension of time – where delay occasioned by Applicant’s representative and through no fault of the Applicant – extension of time granted.  
Legislation:

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

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Cases cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

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

Division: Division 2 General Federal Law
Number of paragraphs: 21
Date of last submissions: 27 January 2023
Date of hearing: On the papers
Place: Melbourne (in chambers)

ORDERS

MLG 2253 of 2022

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

MINA JAFARI
Applicant
AND: HIGGINS COATINGS PTY LTD
Respondent

order made by:

JUDGE MANSINI

DATE OF ORDER:

6 April 2023

THE COURT ORDERS THAT:

1.The amended application for an extension of time (filed on 27 January 2023) (Extension of Time Application) be granted and the time for filing be extended to 7 October 2022.

2.There be no order as to costs.

AND THE COURT NOTES THAT:

A.The Respondent consented to the grant of an extension of time for filing the Extension of Time Application so that it be taken to have been filed on 7 October 2022.

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 MANSINI

IN SUMMARY

  1. Before the Court is an application for an extension of the 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, the application was filed 16 days after the expiry of the statutory timeframe and the Court is satisfied this is an appropriate case to allow an extension of the filing period.

    THE EXTENSION OF TIME APPLICATION

    The time for making a general protections application to the Court

  2. 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 the Commission has issued a certificate under s.368(3)(a) of the Act and the application to the Court is made within 14 days after the day the certificate is issued or within such further period as the Court allows on an application made during or after those 14 days: s.370 of the Act.

    The application was filed late

  3. The Commission issued a certificate relating to the dispute on 7 September 2022 and the application to this Court was required to be made by or before 21 September 2022.

  4. The application was not filed in the approved form, and therefore was not made in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), until 7 October 2022.

  5. Accordingly, the application was made 16 days after the expiry of the statutory timeframe.

  6. By the amended application filed on 27 January 2023 (made pursuant to procedural orders made by this Court on 12 January 2023), the Applicant asked the Court to extend the time for filing of the substantive application. Evidence of a Ms Paula Appelhans, solicitor, Cogent Legal, and an outline of submissions have been filed in support. The Respondent ultimately did not oppose.

    Whether to extend the time for filing

  7. An application alleging dismissal in contravention of the general protections provisions of the Act may be made within 14 days of the Commission’s certificate or within such further period as the Court allows.

  8. The principles that the Court applies when considering whether to extend time are not “fixed”.  However, the factors identified by Justice Marshall in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-230 have been regularly transposed and applied to this jurisdiction.

  9. It is not controversial that the onus rests with the Applicant to satisfy the Court that grounds exist for exercising the Court’s discretion to grant an extension of time in her favour and that the named 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 per Toohey and Gummow JJ at 544 and 547.

  10. The Court is required to consider whether to exercise the discretion having regard to those principles and the evidence before the Court. That the Respondent has consented to the application is not dispositive of the Court’s obligation in this respect.

  11. I turn now to consider the facts and circumstances of this matter in light of the established (albeit non-exhaustive) principles.

    Explanation for the delay

  12. The amended application filed 27 January 2023 articulated the reason for the delay as:

    ...due to issues with eLodgement and filing the application electronically. This led to further review of the filing which required the filing to be re-filed after the deadline.

  13. By the affidavits of Ms Appelhans dated 27 September 2022 and 25 January 2023, the Applicant’s representative deposed to the following:

    (a)On 6 September 2022, Ms Appelhans attended a conciliation conference before the Commission and the matter was not resolved;

    (b)At the end of the conciliation conference before the Commission, the Applicant instructed Ms Appelhans to commence proceedings in the Court once the Commission’s certificate was received;

    (c)On 7 September 2022, Ms Appelhans received the Commission certificate and sought instructions from the Applicant;

    (d)On 9 September 2022, the Applicant confirmed that she wished to proceed with filing the claim in the Court;

    (e)On 21 September 2022, Ms Appelhans reviewed the materials for final filing and, at approximately 4.10pm that day, reviewed the claim one more time and prepared the documents in pdf format for filing;

    (f)Also on 21 September 2022, at approximately 4.20pm, in the knowledge of the 4.30pm filing deadline and having considered she had enough time to complete the electronic lodgment, Ms Appelhans attempted to log in to the Court’s eLodgement portal to file the claim but the system did not accept her login and required her to create a new password; after multiple unsuccessful attempts, Ms Appelhans was then denied access to the system or required to change her password and it was not until approximately 5.40pm that Ms Appelhans was able to access the system to file the documents with a time stamp of 5.50pm for filing;

    (g)On 26 September 2022, Ms Appelhans first received a response from the Court’s Registry which requested the documents be “re-filed”;

    (h)On 26 and 27 September 2022, Ms Appelhans exchanged correspondence with the Court’s Registry to request assistance and ultimately requested a review by a Senior Registrar due to the issues experienced with the portal; and

    (i)On 5 October 2022, Ms Appelhans received an email which attached a letter from a Judicial Registrar that confirmed the outcome of the review.

  14. A copy of the Judicial Registrar’s letter of 5 October 2022 was in evidence. On its face, the Judicial Registrar stated that they had reviewed the materials and, pertinently:

    I do not accept that the Application should now be accepted for filing and backdated to “approximately” 4.20pm on 21 September 2022. It is not possible to give a lodgement an approximate time, and on any view of the evidence in your affidavit, it could not be correct to designate the time as 4.20pm. Your evidence is that you did not attempt to log on to the eLodgment portal until “after approximately 4.20pm”. Critically, if it was not reasonably practicable to file the Application by electronic communication in accordance with rule 2.08(2), including because you were experiencing difficulties with the eLodgment portal, the Rules provide alternative means by which the Application could have been filed. Those alternative means of filing the Application included to email or fax the Application to the registry.

    For the above reasons I refuse to accept the Application for filing pursuant to rule 2.06 of the Rules.

    You may file a new application that includes an application for an extension of time pursuant to s 370 of the Fair Work Act.

  15. The application was not then filed until 7 October 2022.

  16. On the evidence before the Court, it is apparent that the Applicant had instructed a lawyer to attend to filing the substantive application in this matter within the statutory timeframe. That the lawyer waited until the last possible moments to do so is not satisfactorily explained and there is no explanation as to why the lawyer did not avail of alternative methods of filing. It may be acknowledged that the Applicant’s lawyer engaged in correspondence with the Court’s Registry on the next working days, 26 and 27 September 2022. However, instead of attending to filing the application and requesting an extension of the time for filing she sought a review. It remains that the application was not made until 7 October 2022.

  17. On the evidence before the Court, I am satisfied that the Applicant instructed a lawyer who did not attend to proper filing in accordance with the Court’s Rules, and the delay was occasioned through no fault of the Applicant.

  18. I consider that the explanation for the delay weighs strongly in favour of the grant of an extension of the time for filing.

    Prejudice to the Respondent

  19. There is no prejudice raised by the Respondent, nor do I consider any particular prejudice would fall on the Respondent were an extension granted and this is a neutral factor.

    Merits of proposed grounds

  20. The merits are a matter to properly be tested on evidence and also weigh neutrally in the particular circumstances of this case.

    CONCLUSION

  21. Having regard to the relevant factors about which the Court was addressed, on an overall assessment, this is an appropriate case to extend the time for filing to 7 October 2022 and I order accordingly.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       6 April 2023

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