Madigan v South Australian Museum Foundation Inc

[2017] FCCA 2165

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADIGAN v SOUTH AUSTRALIAN MUSEUM FOUNDATION INC & ORS [2017] FCCA 2165

Catchwords:
INDUSTRIAL LAW – Application for extension of time in which to file application pursuant to the Fair Work Act 2009 – application granted.

Legislation:

Fair Work Act 2009 (Cth), s.370

Federal Circuit Court Rules 2001 (Cth), r.21.07

Cases cited:

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

Applicant: MICHAEL WILLIAM MADIGAN

First Respondent: SOUTH AUSTRALIAN MUSEUM FOUNDATION INC

Second Respondent: REGAN FORREST

Third Respondent: BRIAN OLDMAN

File Number: ADG 113 of 2017

Judgment of: Judge Heffernan

Hearing date: 27 July 2017

Date of Last Submission: 27 July 2017

Delivered at: Adelaide

Delivered on: 26 September 2017

REPRESENTATION

Counsel for the Applicant: Mr R Manuel

Solicitors for the Applicant: Starke Lawyers

Counsel for the Respondents: Mr D Krips

Solicitors for the Respondents: EMA Legal

ORDERS

1. The time for the filing of the application and Form 4 Claim is extended to 28 March 2017.

2. The solicitor for the applicant is to pay the costs of the respondent in the amount of TWO THOUSAND, EIGHT HUNDRED AND EIGHTY SEVEN DOLLARS ($2,887).

3. Within 28 days the parties provide mutual informal discovery of all documents in their respective possession, custody or control.

4. The proceedings be referred to a Registrar for mediation under s.34 of the Federal Circuit Court Act 1999 (Cth) and Division 27.2 of the Federal Circuit Court Rules 2001 (Cth), such mediation to be conducted at 9.30am on 28 November 2017.

5. The parties shall file and serve position papers 7 days prior to the mediation date, if directed to do so by the Registrar.

6. Further consideration of the matter is adjourned to 9.30am on 5 December 2017 before Judge Heffernan for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 113 of 2017

MICHAEL WILLIAM MADIGAN

Applicant

And

SOUTH AUSTRALIAN MUSEUM FOUNDATION INC

First Respondent

REGAN FORREST

Second Respondent

BRIAN OLDMAN

Third Respondent

REASONS FOR JUDGMENT

1. This is an application by Michael William Madigan for an extension of time in which to file an application under the Fair Work Act 2009 (Cth) (‘the Fair Work Act’), alleging a contravention of a general protection. The application and Form 4 were filed on 28 March 2017. It is common ground between the parties that the application was filed some 35 days after the expiration of the time limit provided for in s.370 of the Fair Work Act.

2. The applicant relies upon two affidavits of his solicitor, David Ashley Starke, sworn on 1 June 2017 (‘the first Starke affidavit’) and 6 July 2017 (‘the second Starke affidavit’), together with his own affidavit of 1 June 2017 (‘the Madigan affidavit’).

The Law

1. Section 370 of the Fair Work Act relevantly provides that:

   “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.”

2. There are no particular criteria or requirements set out in the legislation of which a court must be satisfied in order to grant an extension beyond the 14 day period in which to file the relevant application.  Logically, an extension of time must at least be consistent with and facilitate the interests of justice.

3. It is accepted by counsel for both the applicant and the respondent that principles relevant to the exercise of the court’s discretion to grant an extension of time under the Act were enunciated in Brodie-Hanns v MTV Publishing Ltd.[1]  It is further accepted that the principles enunciated in that decision provide assistance to this Court, but are not binding on it.

   [1] (1995) 67 IR 298.

4. The matters identified in Brodie-Hanns are as follows:

   i)It is not necessary, in order for a court to extend time, that special circumstances be found to exist.  The prima facie position is that the time limit should be complied with, unless there is an acceptable explanation for the delay, which makes it equitable to extend time.

   ii)Action taken by the applicant to contest the termination, other than applying under the Act, will be relevant, because it will show that the decision to terminate is actively contested, and it may favour granting an extension of time.

   iii)The question of prejudice to the respondent, including prejudice caused by the delay, is a factor that will go against the granting of an extension of time.

   iv)The absence of prejudice to a respondent is not a sufficient basis upon which to grant an extension of time.

   v)The merits of the substantive application are a relevant consideration in determining whether to grant an extension of time.

   vi)A consideration of fairness, as between the applicant and other people in a similar position to him, is relevant to the exercise of the court’s discretion.

The Evidence

1. Mr Madigan’s affidavit swears that on or about 3 February 2017, he instructed his solicitor to make an application on his behalf in relation to harassment and bullying against the first to third respondents inclusive.  He now believes that this is a matter that was overlooked by his solicitor and, accordingly, the proceedings were not lodged within time.  He says that he was reliant upon his solicitor, not simply for legal advice, but also to competently follow his instructions as to the filing of proceedings, and that this was a matter particularly relevant to him, because he suffers from anxiety and other mental health issues.  He says those issues were caused by the conduct of his former employer.

2. On Mr Madigan’s affidavit, he intended at all relevant times to pursue an application in this Court.  He says that after a conciliation conference in the South Australian Employment Tribunal, and prior to the expiration of the time limit for this application, he provided his instructions to Starke Lawyers and so his intention to pursue proceedings in this Court is self-evident.

3. On his account, because of problems he experiences with anxiety and depression, he has had difficulties in regularly attending at the office of his solicitor.  He says that having provided instructions to his solicitor to file these proceedings, he nonetheless followed up with him on a number of occasions and left messages (by implication, inquiring as to the progress of the proceedings) and that he was on those occasions told that Mr Starke was not available.

4. In the first Starke affidavit, Mr Starke deposes that he is the sole Director of Starke Legal Proprietary Limited, trading as Starke Lawyers, and an employee of Starke Lawyers, and that he is the relevant solicitor who took instructions from Mr Madigan to file proceedings.  He confirms that he was the file principal, who was responsible for the conduct of the proceedings in the South Australian Employment Tribunal.  The conciliation conference, held in the SAET, did not resolve the dispute between the parties.  He deposes to having received a certificate from the SAET, via email, on 7 February 2017. 

5. On Mr Starke’s account, he met with his client on 3 February 2017 at his office.  He advised his client that as the matter had not resolved and a certificate was issued by the SAET, it would be possible to pursue proceedings in this Court.  During that attendance, he deposes that he explained both the legal process, the cost structure and “timeframe”.  Mr Madigan then provided him with instructions to file proceedings in this Court.

6. During that meeting, Mr Starke went through the relevant Form 4 Claim Under the Fair Work Act, which has subsequently been filed in these proceedings. He says that he took instructions from Mr Madigan in relation to that document. The Form was completed on 14 February 2017 but Mr Madigan was, regrettably, experiencing anxiety and depression on that day. Mr Starke made the observation that the applicant was “anxious, sweating and could not sit for long periods of time”.  It appears for that reason the conference ended.

7. It is at this point that Mr Starke’s carriage of the matter began to go awry.  On his account:

   “On completion of the conference, I placed M  Madigan’s file on one of the secretary’s desk. [sic] For whatever reason, Mr Madigan’s file was removed from the desk.  It went missing in the office.  As Mr Madigan’s file was not in my immediate presence and I failed to diarise the timeframes.  [sic] I overlooked finalising the form 4.”[2]

   [2] First Starke affidavit at [9].

8. Mr Starke says that the applicant attempted to contact him by telephone on numerous occasions after 14 February 2017, and that he was aware that messages were taken for him in relation to those calls.  Notwithstanding the fact that he was aware of Mr Madigan’s attempts to presumably seek confirmation that the proceedings had been filed, he failed to either return Mr Madigan’s phone calls, or to ensure that the proceedings were filed within the relevant 14 day period.  Mr Starke is quite clear in his affidavit that he accepts responsibility for the late filing of this application.  In the circumstances, there could be no other reasonable position for him to take.

9. In the second Starke affidavit, the applicant’s solicitor provides some further detail with respect to his Fair Work Commission conference with the applicant on 3 February 2017.  He confirms that he told the applicant that there was a 14 day period in which to make an application to this Court.  It was agreed at that meeting that they would meet again to “advance the matter”.  The applicant contacted Mr Starke on 7 February 2017, but he was unable to meet with him.  He was also unable to meet on Friday, 10 February 2017, which was a time suggested to him by Mr Madigan.  He indicated that he would see the applicant in the following week. 

10. After the meeting on 14 February 2017, Mr Starke indicated that he would meet or make contact with Mr Madigan by 16 February 2017.  He did not do so.  It seems, on Mr Starke’s account, that the applicant attempted to contact him on that day, but he was not present at the office and missed the call.  Apparently the applicant attended at Mr Starke’s office on 28 February 2017 and was told by Mr Starke that he would “deal with the matter” and that Mr Madigan should not become stressed. 

11. It seems that Mr Starke then bumped into Mr Madigan on an undisclosed date in the first half of March 2017, “by chance, close to my office”, and Mr Madigan told him that he had been trying to make contact with him.  On that occasion, Mr Starke promised that he would get back in touch with him.  Finally, on 27 March 2017, Mr Starke arranged for the applicant to attend at his office and sign the Form 4 claim form.  He did not advise the applicant in detail of the implications of the application being out of time.  The application was filed on 28 March 2017.

Submissions

1. Mr Manuel, counsel for the applicant, made the submission that it is apparent from the affidavit materials filed that the applicant always intended to pursue an application in this Court, and that the failure to lodge the proceedings in a timely fashion cannot in any way be attributed to his conduct.  His intention to pursue his workplace rights was evidenced by the fact that he made an application within time to the Fair Work Commission. 

2. It was submitted that it is quite apparent from the affidavit material that at all times the applicant has endeavoured to keep in touch with his solicitor, pursued him for advice, and sought to confirm that those things which the solicitor had been instructed to do had actually been done.  To that extent, the applicant relied on the professional skills and commitment of his solicitor.  Mr Manuel submitted that in this instance, the applicant was particularly reliant upon the diligence of his solicitor, because of the fact that he has a mental health condition, as described in the affidavit material and the report of Dr Tony Davis dated 31 May 2017.

3. With respect to the consequences of the court refusing to grant an extension of time to the applicant, Mr Manuel submits that whilst the applicant is pursuing a claim for worker’s compensation, because of the exacerbation of his mental health condition, counsel, by the conduct of the respondents, the rights afforded to him under the state legislation are not sufficient to replace the rights that he has under the Fair Work Act 2009.  For example, it was submitted that under the state legislation, the applicant would not be entitled to general damages, that any worker’s compensation payments would be reduced after a period of two years, and that there is no capacity to seek non-economic damages or to impose penalties on the respondents.  Further, the second and third respondents would not be able to be joined to the worker’s compensation proceedings as being involved in any contravention.

4. In Mr Manuel’s submission, a consideration of the relevant merits of the claim does not require the court to determine ultimately that it is more likely than not to be successful.  Rather, what is required to be shown is that there is a prima facie case established that appears to be viable. 

5. Mr Manuel submitted that the respondents do not appear to have suffered any prejudice by reason of the delay.  There has not been any compromise in their capacity to defend these proceedings, and it was noted they had not put on any evidence to suggest otherwise.  It was conceded, as is well established, that the mere lack of prejudice does not of itself form a basis for an extension of time, but the lack of prejudice remains a relevant consideration. 

6. In summary, Mr Manuel’s submission was that a failure to extend time in these proceedings would not cause prejudice to the respondents, but would cause the applicant to suffer considerable prejudice, by virtue of the loss of rights and entitlements to sue that could not otherwise be pursued by way of worker’s compensation proceedings or an action for professional negligence against his solicitor.

7. In the submission of the respondent, the evidence provided by the applicant explaining the reasons for delay are inadequate.  That is a matter it submits that should be fatal to the application to extend time because it is clearly incumbent upon the applicant to make full and frank disclosure of the circumstances that led to the failure to file proceedings expeditiously.  For that reason, the Court is prevented from properly assessing whether the explanation provided for the delay is in fact “acceptable” within the meaning of the Brodie-Hanns case.  The type of matters identified by the respondent as being absent from the explanation provided in the applicant’s material include explanations as to:

   a)How or why the file “disappeared” from the desk of the secretary;

   b)Why the matter was not diarised;

   c)The extent and nature of any other commitments requiring the solicitor’s attention, or in other words, how busy he was at the relevant time;

   d)How many times the applicant telephoned or attended upon the solicitor’s office to make enquiries of progress; and

   e)Why the solicitor did not return the phone calls from the applicant.

8. The criticisms are all validly made.  The respondent was also critical of the applicant’s conduct and submitted that he bore a share of the responsibility for the matter being filed out of time.  I find that submission to be less compelling and have accorded it less weight.  In particular, I reject the submission that given the applicant first took legal advice about the potential for a “wrongful dismissal claim”, that the magnitude of the delay is enhanced considerably once the full length of the time frame is appreciated.  The matter is out of time by 35 days.  That is the magnitude of the delay.

9. The respondent submitted that there is no evidence whatsoever that the applicant’s health impaired him in any way at any time from interacting with his solicitor in order to progress his claims.  It points to the fact that he attended twice upon the solicitor and followed up with a number of phone calls to support that submission.  For that reason, the health of the applicant should not be considered as a relevant factor. 

10. The respondent’s submission with respect to prejudice acknowledges that beyond denying the respondent of the benefit of the time limitation, it would not suffer any prejudice were I to extend the time in which to initiate these proceedings.  It submits that a delay of 35 days is significant and this is of course correct.

11. Whilst acknowledging that a consideration of the merits of the substantive application is inevitably a “rough and ready” exercise, the respondent submitted that if the prospects of success of the substantive application are plainly weak, that this would be a matter to be accorded some weight.  As a general proposition that is plainly correct.  It was submitted that the applicant’s claim is infected with a fundamental chronological deficiency because the process that resulted in the termination of the applicant’s employment commenced before the applicant raised any complaints or asserted any work place rights in connection with alleged bullying.  Whilst there is something to be said for this submission, I am not satisfied that the substantive claim is not reasonably arguable. 

12. In considering the factors identified by Brodie-Hanns the most important matter weighing on the exercise of my discretion is the adequacy of the explanation which has been provided for the delay.  I do not regard the respondent’s submission that the applicant himself must share some of the responsibility for these proceedings being filed out of time as a particularly compelling factor.  Every matter must of course turn on its own facts.  There is no minimum number of times that the applicant should have contacted or attempted to contact his solicitor in order to follow up on his instructions.  I am satisfied that the applicant demonstrated through his conduct that he intended at all times to pursue this litigation and that he made reasonable efforts to ascertain that his solicitor had pursued his instructions diligently. 

13. In instructing Mr Starke, the applicant placed himself in the hands of an officer of the Court and was entitled to expect as a bare minimum that he would comply with his instructions and file the matter within time.  I am satisfied that the applicant would be significantly prejudiced if the negligent conduct of his solicitor were to deprive him of his right to pursue an application in this Court.  I regard that matter as having greater weight than the loss to the respondents of the benefit of the time limit prescribed by Parliament.  The explanation proffered by the applicant is adequate in this sense, it establishes that the applicant had always intended to pursue these proceedings and the failure to comply with the time limits arose because of circumstances outside his direct control. 

14. I am satisfied that the applicant did everything that he was required to do in order to advance these proceedings. 

15. Having said that, the conduct of the solicitor fell significantly below the standard required of an officer of the Court in representing a prospective litigant. It is appropriate that the solicitor be ordered to pay the respondent’s costs in defending this application. Rule 21.07 of the Federal Circuit Court Rules 2001 (Cth), relevantly provides that costs may be ordered against a lawyer if the lawyer has caused costs to be incurred by a party or another person inter alia because of undue delay or negligence.

1. It is appropriate to extend the time in which to file these proceedings to the date on which they were filed.

2. I make the orders to be found 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 Heffernan

Associate: 

Date:  27 July 2017