McPaul v CPC Engineering Pty Ltd - [2013] FMCA 71

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCPAUL v CPC ENGINEERING PTY LTD

[2013] FMCA 71

INDUSTRIAL LAW – General protections claim – dismissal in alleged contravention of general protection.

PRACTICE AND PROCEDURE – Extension of time in which to file general protections claim – whether explanation for delay – whether representative error – prejudice by effluxion of time and entitlement to consider matter at an end – merits of the substantive application.

Fair Work Act 2009 (Cth), ss.340, 369, 371, 570
Occupational Safety and Health Act 1984 (WA), ss.19, 43(1), 52(3)

Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387; [2007] FMCA 26
Brandi v Mingot (1976) 12 ALR 551
Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 931
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
City of Canning v Avon Capital Estates (Australia) Ltd (2009) 169 LGERA 15; [2009] WASCA 120
Comcare v A’Hearn (1993) 45 FCR 441
Ejueyitsi v Bond University [2012] FCA 1514
Gail Beattie as Executrix of the Estate of John Beattie v Beattie & Ors [2005] WASC 85
Hamden v Secretary, Department of Human Services [2013] FCA 3
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228
Jones v Dunkel & Anor (1959) 101 CLR 298
Kousal v Tack (2002) 30 Fam LR 581; [2002] Fam CA 1152
Minogue v Human Right and Equal Opportunity Commission (1999) 84 FCR 438
Mytton-Watson v Commonwealth Bank of Australia [2012] WASCA 232
O’Donnell v Reichard [1975] VR 916
O’Donoghue v Australian Information Commissioner [2012] FCA 1219
Re. F: Litigants in Person Guidelines (2001) 27 Fam LR 517; [2001] Fam CA 348
Singh v Owners Strata Plan No 11723 (No. 4) [2012] FCA 1180
Tinkler v Elliott [2012] EWCA Civ 1289
Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186
Transport Workers’ Union v School Bus Contractors Pty Ltd (2011) 201 IR 327; (2011) 246 FLR 430; [2011] FMCA 28
Turner v K & J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412

Justice Ipp “Judicial Intervention in the Trial Process” (1995) 69 ALJ 365
Justice Wilson “Expert Evidence, Self-Represented Litigants and The Evidence of Children” (Address to Queensland Industrial Relations Commission, 2 September 2005)

Applicant:

DAVID JOHN MCPAUL

Respondent:

CPC ENGINEERING PTY LTD

File Number:

PEG 275 of 2012

Judgment of:

Lucev FM

Hearing date:

12 February 2013

Date of Last Submission:

12 February 2013

Delivered at:

Perth

Delivered on:

15 February 2013

REPRESENTATION

Counsel for the Applicant:

Mr T Petherick

Solicitors for the Applicant:

Trent Petherick Lawyers

Counsel for the Respondent:

Mr T French

Solicitors for the Respondent:

Clyde & Co

ORDERS

That the application for an extension of time in which to file the application be dismissed.
That the application be dismissed.
That any application for costs under s.570 of the Fair Work Act 2009 (Cth) be made by way of written submission within 7 days, with any response to such application also to be made by way of written submission to be filed within a further 7 days, with the costs application to be determined on the written submissions filed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 275 of 2012

DAVID JOHN MCPAUL

Applicant

And

CPC ENGINEERING PTY LTD

Respondent

REASONS FOR JUDGMENT

Application

The substantive application before the Court is a claim under the Fair Work Act 2009 (Cth)[1] alleging dismissal in contravention of a general protection.
[1] “FW Act”.
The substantive application was filed on 15 November 2012. Attached to the Form 2 – Claim form[2] filed with the substantive application is a certificate under s.369 of the FW Act[3] issued by Fair Work Australia[4] on 5 September 2012. The Certificate is in terms indicating that pursuant to s.369 of the FW Act, FWA certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. The Certificate, which is attached to the Claim Form, contains the following note at the foot of the Certificate:
[2] “Claim Form”.
[3] “Certificate”. See also Exhibit 1, which is a copy of the Certificate and associated documents, tendered without objection.
[4] “FWA”.
Important note:
The person dismissed or an industrial association that is entitled to represent the industrial interests of the person dismissed has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Magistrates Court for a civil remedy order, unless the court extends the time for making such an application.
The above note reflects the terms of s.371(2) of the FW Act. The application was, therefore, filed 57 days, or more than eight weeks out of time.
On 7 December 2012 the Court ordered that the preliminary issue of an extension of time in which to bring a claim under s.371(1) of the FW Act be determined by hearing.

Extension of time

Legislation

Section 371 of the FW Act provides as follows:
FWA conference to be held before application
(1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) FWA has issued a certificate under section 369 in relation to the dispute; or
(b) the general protections court application includes an application for an interim injunction.
Time for application
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
There is no application for an interim injunction in this case.
There is a “Note” at the end of s.371(2) of the FW Act, as follows:
Note: In Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988 .[5]
[5] “Section 371 Note”.

Principles to be applied

In Brodie-Hanns v MTV Publishing Ltd[6] the Industrial Relations Court of Australia[7] said that the “principles … appropriate to be applied”[8] in considering whether or not to grant an extension of time were 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.
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.[9]
[6] (1995) 67 IR 298 (“Brodie-Hanns”).
[7] “IR Court”.
[8] Brodie-Hanns at 299 per Marshall J.
[9] Brodie-Hanns at 299-300 per Marshall J.
The principles set out in Brodie-Hanns were said[10] to be derived from two earlier judgments of the IR Court,[11] which in turn applied the tests in the well known Federal Court judgment in Hunter Valley Developments Pty Ltd v Cohen.[12]
[10] Brodie-Hanns at 298 per Marshall J.
[11] Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186; Turner v K & J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412.
[12] (1984) 3 FCR 344 at 348-349 per Wilcox J (“Hunter Valley Developments”).
In Transport Workers’ Union v School Bus Contractors Pty Ltd[13] this Court found that the Section 371 Note did not form part of the FW Act, and that s.371(2) of the FW Act was so broad a general discretion that it was not compatible with any limitation arising from the application of the Brodie-Hanns principles.[14] The Court went on to observe that:
Although the Section 371 Note does not form part of the FW Act, and although the Brodie-Hanns principles are not binding upon the Court, the Brodie-Hanns principles have been regularly applied by this Court, and do constitute a relevant guide to the criteria to be applied. The Court will therefore use the Brodie-Hanns principles as non-binding but guiding criteria in this matter.[15]
[13] (2011) 201 IR 327; (2011) 246 FLR 430; [2011] FMCA 28 (and an abridged version is reported at (2011) 246 FLR 430) (“School Bus Contractors”).
[14] School Bus Contractors, IR at 339 per Lucev FM; FLR at 437 per Lucev FM; FMCA at para.36 per Lucev FM.
[15] School Bus Contractors IR at 339 per Lucev FM; FLR at 437-438 per Lucev FM; FMCA at para.37 per Lucev FM.
The Court will adopt the same approach in this matter.

Affidavit in support of application for extension of time

At the same time as the substantive application was filed, the applicant also filed an affidavit[16] in support of the application for extension of time. The Applicant’s Affidavit deposes to the following facts:
[16] “Applicant’s Affidavit”.
a)a claim was lodged with FWA on 16 August 2012;[17]
[17] Applicant Affidavit, para.3.
b)the applicant was unrepresented before FWA;[18]
[18] Applicant’s Affidavit, paras.3 and 4.
c)there was a telephone conference to deal with the dispute on 5 September 2012 before FWA;[19]
[19] Applicant’s Affidavit, para.4 (“FWA Conference”).
d)the FWA Commissioner stated that a certificate “would be issued”, but the applicant “had no idea what this meant, and in particular that I had 14 days following the issuing of a Certificate to make a claim in this Court, or seek an extension”;[20]
[20] Applicant’s Affidavit, para.5.
e)no Certificate was received from FWA, and the applicant believes that a copy of the Certificate was neither emailed nor posted to him;[21]
[21] Applicant’s Affidavit, para.6.
f)the applicant relocated to the Mandurah area following the loss of his job;[22]
[22] Applicant’s Affidavit, para.6.
g)the respondent is seemingly based in Kalgoorlie;[23]
[23] Form 2 – Part B, Question 7.
h)the applicant never received a copy of the Certificate from FWA;[24]
[24] Applicant’s Affidavit, para.6.
i)the applicant subsequently decided to obtain legal advice, and contacted FWA, who gave him a list of “possible representatives” who might give him legal advice, which included the name of the lawyer who now acts for him, but when he contacted the firm at which that lawyer was said to work he was advised that that lawyer had left, and they would not tell the applicant where the lawyer had gone, but he “finally tracked [the lawyer] down at his own firm in Mandurah”,[25] and it would appear that the FWA recommended lawyer was engaged to provide services as the applicant’s lawyer;[26]
[25] Applicant’s Affidavit, para.7.
[26] Whether or not it is proper for FWA, an independent Commonwealth body, to recommend the services of a particular lawyer for the purposes of taking action in this Court to a self-represented party who has been involved in proceedings before FWA, is not a matter which presently falls for consideration.
j)the applicant’s lawyer obtained a copy of the file from FWA,[27] and the applicant understands there was “considerable delay as the Commissioner was on leave”, and that the applicant’s lawyer emailed the Commissioner’s office on three occasions before the FWA File was released on 30 October 2012;[28]
[27] “FWA File”.
[28] Applicant’s Affidavit, para.8.
k)the FWA File contained a copy of the Certificate, which was then seen by the applicant for the first time on 30 October 2012, at which time the applicant became aware for the first time of the time limitation which is stated in the Certificate;
l)the applicant’s delay in filing the application with this Court was not intentional and was due to the above factors, including not being provided with the Certificate until 30 October 2012;[29]
[29] Applicant’s Affidavit, para.9.
m)the applicant believes there is no prejudice to the respondent in granting an extension of time;[30]
[30] Applicant’s Affidavit, para.10.
n)the application:
… raises significant health and safety issues, which my former employer chose to ignore and dismissed me, rather than address appropriately. The health and safety issues I raised with the respondent prior to my dismissal included staff being provided directions from management to falsify safety documentation, operation of machinery by climbing up on same without using a safety basket and in breach of safety policy and laws, being required to use untagged safety harnesses, near misses in my team that had not been reported and failing to investigate a complaint of workplace bullying and provide a safe working environment. My complaint of workplace bullying included physical assault on me by my supervisor which was witnessed by another employee. There are numerous safety incidences.[31]
o)the above issues were raised at a meeting on 30 July 2012[32] with management of the respondent, and minutes of that meeting record an agreement that the applicant was to be removed from his current crew and reassigned to another crew or assigned alternative duties.[33] Attached to the Applicant’s Affidavit, on the respondent’s letterhead, is what is said to be a summary of the Meeting[34] “regarding allegations of bullying”.[35] The Summary records the actions agreed in the Meeting to include that the applicant:
… will be taken off that particular crew and reassigned to another crew or assigned other duties as deemed appropriate …[36]
p)contrary to that agreement the employer respondent dismissed the applicant on the next shift being 15 August 2012, claiming that the applicant was casual and could be rostered off;[37] and
q)the applicant claims that he was “a permanent staff member”.[38]
[31] Applicant’s Affidavit, para.11.
[32] “Meeting”.
[33] Applicant’s Affidavit, para.12.
[34] “Summary”.
[35] Applicant’s Affidavit, Annexure A.
[36] Applicant’s Affidavit, Annexure A.
[37] Applicant’s Affidavit, para.13.
[38] Applicant’s Affidavit, para.13.

Respondent’s evidence

The respondent’s evidence consisted of Exhibit 1, which was tendered without objection, and which comprised:
a)a copy of the Certificate;
b)a document headed “Copy of Document Filed” which appears to indicate that it was sent, together with an attached copy of the Certificate, to the applicant at the following email address: [email protected] on 5 September 2012;
c)a “Generate Document Wizard” which indicates that there was “Success” in sending documents, including a document in the matter before FWA to the applicant at the abovementioned email address; and
d)a partial screen shot indicating that certain documents were sent from the chambers of the FWA Commissioner who issued the Certificate in relation to the matter involving the applicant and the respondent before FWA at 11.00am on Wednesday 5 September 2012, that being the day of the FWA Conference.

Explanation for delay

The total delay in this case is 57 days from 20 September 2012, being the day after the time limitation expired to 15 November 2012, being the day that the substantive application, the Claim Form, and the Applicant’s Affidavit were filed.
The explanation given for the failure to file the application in this Court within 14 days of the issuance of the Certificate on 5 September 2012 is simple - the applicant, then self-represented, says:
a)he did not know of the time limit which expired on 19 September 2012;
b)he first became aware of the time limit on 30 October 2012, some 41 days after it had expired; and
c)he became aware of the time limit when the lawyer he had engaged subsequent to the FWA Conference obtained access to the FWA file.[39]
[39] See the Applicant’s Affidavit generally.
The explanation as to what was done following the expiry of the 14 day time limit is, in many respects, both curious and lacking in detail. There are a number of aspects of the explanation which strike the Court as unsatisfactory. They include that:
a)although having “no idea” what was meant by the FWA Commissioner saying that he would issue the Certificate,[40] it would appear that the applicant made no inquiry as to what it did mean, either at the FWA Conference or at any time thereafter up to and including 30 October 2012;
[40] Applicant’s Affidavit, para.5.
b)it is not possible to assess the importance or relevance of the applicant’s change of address, as there is no indication:
i)when it occurred vis-à-vis the FWA Conference or the 14 day time limit; and
ii)what, if any, arrangements were put in place for mail to be forwarded from the applicant’s old address (wherever that was) to his new address,
but it may be both unimportant and irrelevant, because the applicant submitted at hearing that correspondence between FWA and the applicant was by email, a fact seemingly confirmed by Exhibit 1, which records the sending of documents by email to the applicant at davidmcpaul.westnet.com.au at 11.00am on 5 September 2012 (that is the day of the FWA Conference);
c)there is no indication as to:
i)how long it was before the applicant contacted FWA seeking legal advice as to a “possible representative”, and his being given the name, amongst others, of his current lawyer, by FWA;
ii)how long it was after FWA had apparently given the applicant advice as to a “possible representative” that the applicant actually endeavoured to contact, and when he did finally contact, his current lawyer;
iii)how long it was before the applicant’s lawyer then actually contacted FWA with respect to the FWA File or the Certificate;
iv)the dates of the emails allegedly sent by the applicant’s lawyer to FWA; and
v)when the FWA File was finally retrieved, and when the applicant’s lawyer first saw the FWA File and the Certificate;
d)there is no evidence that the applicant’s lawyer, who presumably knew that the Certificate was required in order to make the subsequent application to the Court, actually asked for a copy of the Certificate at any time before the FWA File “was released”[41] on 30 October 2012;
e)there is no information, in the Applicant’s Affidavit or any affidavit filed on behalf of the applicant, as to what the FWA File revealed about whether or not the Certificate was originally sent to the applicant, and if so, to what address, which information ought to have been able to have been ascertained from the FWA File once released to the applicant’s lawyer; and
f)there is no evidence as to the actual steps taken by the applicant’s lawyer with respect to the sending of correspondence or emails to FWA seeking release of the FWA File.[42]
[41] Applicant’s Affidavit, para.8.
[42] Applicant’s Affidavit, para.8.
There is an obligation on an applicant in making and pursuing an extension of time application to make full and proper disclosure of all of the relevant circumstances.[43]
[43] Gail Beattie as Executrix of the Estate of John Beattie v Beattie & Ors [2005] WASC 85 at para.23 per Sanderson M.
It is evident from the foregoing recitation of aspects of this matter that strike the Court as unsatisfactory, that significant relevant information has not been disclosed to the Court in relation to this extension of time application, and that must weigh heavily against the Court being satisfied that there is an acceptable explanation of the delay which makes it equitable to extend the time in which the application is to be made.

The best evidence of many of the issues which the Court has raised and about which it is not satisfied as set out above ought to have come from the applicant’s lawyer, or some other person or persons in that lawyer’s office. It was the applicant’s lawyer who:
a)was seemingly responsible for corresponding with FWA about the release of the FWA File; and
b)observed what was in the FWA File, in relation to relevant issues, once the file was released.
No affidavit from the applicant’s lawyer, or some other person or persons in that lawyer’s office, concerning that correspondence or any search of the FWA File, has been filed.
The applicant asserts that the Certificate was not received by him, and indeed goes so far as to suggest it was not sent to him, by FWA.[44] This is mere assertion by the applicant, and the applicant tenders no evidence to support the assertion that the Certificate was not sent to the applicant by FWA, save his failure to receive it. If there were a basis for such an assertion, then no doubt the applicant’s lawyer would have discerned that evidence in the FWA File when it was released to him, and put that evidence in an affidavit. There is no such evidence on affidavit. In the circumstances, the Court might have been entitled to infer that evidence from the FWA File might not have assisted the applicant.[45] But the Court need not draw that inference because there is direct evidence in Exhibit 1 that the Certificate was sent to the applicant by FWA. That evidence is unchallenged. It does not resolve the problem of why the applicant did not receive the Certificate, which is also unchallenged evidence, but the Court can safely conclude that there was no delay by FWA in forwarding the Certificate to the applicant.
[44] Applicant’s Affidavit, para.6.
[45] Jones v Dunkel & Anor (1959) 101 CLR 298 at 308 per Kitto J, 312 per Menzies J and 320-321 per Windeyer J (“Jones”); O’Donnell v Reichard [1975] VR 916 at 929 per Newton and Norris JJ; Brandi v Mingot (1976) 12 ALR 551 at 559-560 per Gibbs ACJ, Stephen, Mason and Aickin JJ.
The evidence does not disclose that the applicant’s lawyer actually sought a copy of the Certificate from FWA. Rather, the evidence discloses that what was sought was “a copy of … [the applicant’s] file” and that it was this FWA File that was released on 30 October 2012. It does not appear that the applicant, or the applicant’s lawyer, actually sought a copy of the Certificate, as opposed to the FWA File, at any stage. If what was sought was in fact a copy of the Certificate then evidence of that fact could easily have been put on affidavit before this Court by the applicant’s lawyer, or any person or persons acting under his supervision, but that has not been done. The Court is entitled to infer that had evidence been given in relation to the contents of the FWA File in this regard it would not necessarily have assisted the applicant.[46]
[46] Jones CLR at 308 per Kitto J, 312 per Menzies J and 320-321 per Windeyer J.
The Court has had regard to the fact that the applicant was, at least initially, self-represented. There is no doubt that Australian federal courts extend a certain level of indulgence to self-represented litigants in relation to the procedural aspects of the actual conduct of hearings which are before a court, but without the Court going to the extent of, to use a boxing parlance, being in the self-represented litigant’s corner.[47]
[47] Re. F: Litigants in Person Guidelines (2001) 27 Fam LR 517 at 554 per Nicholson CJ, Coleman and O’Ryan JJ; [2001] Fam CA 348 at para.253 per Nicholson CJ, Coleman and O’Ryan JJ; Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 931 at para.7 per Beaumont J; Kousal v Tack (2002) 30 Fam LR 581 at 590 per Nicholson CJ; [2002] Fam CA 1152 at para.47 per Nicholson CJ (“… unrepresented … cannot expect the trial judge … to … get into their corner …”); Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387 at 393-394 per Lucev FM; [2007] FMCA 26 at para.36 per Lucev FM. See also Justice Ipp “Judicial Intervention in the Trial Process” (1995) 69 ALJ 365 at 370, and Justice Wilson “Expert Evidence, Self-Represented Litigants and The Evidence of Children” (Address to Queensland Industrial Relations Commission, 2 September 2005) pp. 11-15.
In Minogue v Human Right and Equal Opportunity Commission[48] a Full Court of the Federal Court observed that:
28. The general principles governing the role of the Judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986). Samuels JA said this (at 14):
"In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."[49]
[48] (1999) 84 FCR 438 (“Minogue”).
[49] Minogue at 445-446 per Sackville, North and Kenny JJ.
Albeit in the context of whether or not a self-represented litigant had acted promptly in seeking to set aside a default judgment, the observations of Maurice Kay LJ in the Court of Appeal in England and Wales in Tinkler v Elliott[50] are also apposite:
I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence. Even if one factors in Mr Elliott’s health problems, the evidence shows that between April and July 2010 he was active in this litigation. The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far.[51]
[50] [2012] EWCA Civ1289 (“Tinkler”).
[51] Tinkler at para.32 per Maurice Kay LJ.
Those observations have commended themselves to the Federal Court on a number of recent occasions.[52]
[52] Singh v Owners Strata Plan No 11723 (No. 4) [2012] FCA 1180 at para.52 per Griffiths J; Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228 at para.26 per McKerracher J; O’Donoghue v Australian Information Commissioner [2012] FCA 1219 at para.19 per McKerracher J; Ejueyitsi v Bond University [2012] FCA 1514 at para.16 per Logan J.
The fact that the applicant was initially self-represented does not, in any event, necessarily excuse not just unfamiliarity with the relevant time limitations, but:
a)a lack of evidence of inquiry concerning time limitations and relevant procedures (such as the failure to inquire as to what was meant by the issuance of the Certificate); and
b)a lack of evidence of any real urgency once the applicant’s lawyer was engaged, and once the time limit was understood.
It is notable that that even when the applicant’s lawyer and the applicant became aware of the relevant time limitation, there was a failure to act with any discernable sense of urgency, and a failure to file the substantive application promptly, such that even if the Certificate had issued on 30 October 2012 the substantive application would still have been out of time. Further, there is no evidence as to why there was a further delay of 16 days in circumstances where, given that the applicant was already at least 41 days outside the 14 day time limit, urgency might have been expected. At hearing the applicant’s lawyer suggested that once the FWA File had been received on 30 October 2012 “there does need to be time to take instructions and prepare the application.”[53] Literally, that is true, but a pro forma substantive application and a largely pro forma Claim Form, together with a very short affidavit in support of the application for an extension of time (an affidavit of 15 paragraphs and less than 3 pages) ought not take 16 days to prepare in circumstances where the applicant and applicant’s lawyer realised that they were already 41 days out of time. Further, there is simply no other explanation in evidence (such as the applicant’s lawyer having been engaged in a two week trial, or some form of family crisis such as a bereavement or accident) which seeks to explain the further 16 day delay.
[53] Transcript, page 9.
The Court also notes that the Applicant’s Affidavit was sworn on Tuesday, 13 November 2012, but like the substantive application and the Claim Form was not filed until Thursday, 15 November 2012. In that respect the Applicant’s Affidavit is incorrect in stating that the substantive application had been filed on Monday, 12 November 2012.[54] The Claim Form was signed by the applicant on Sunday, 11 November 2012, and he might have expected it, together with the substantive application, to have been filed the next day, but it was not. Rather, it was filed three days later, together with the substantive application and the affidavit in support of an extension of time, being the Applicant’s Affidavit. Perhaps significantly the applicant’s lawyer did not sign the application until Wednesday, 14 November 2012, the day before it was ultimately filed. That same lawyer witnessed the Applicant’s Affidavit which asserted that the claim had been filed on Monday, 12 November 2012, when that was not the case. There is no evidence as to why these discrepancies exist, either from the applicant or the applicant’s lawyer. But they make it clear that even at such a late stage there was no discernible urgency on the part of the applicant or the applicant’s lawyer.
[54] Applicant’s Affidavit, para.2.
The Court has considered whether there is a case of representative error, for courts do not like litigants to suffer because of their lawyer’s mistake.[55] What possible representative errors are discernable in this case? The first is that the applicant’s lawyer failed to promptly, or at all, advise the applicant of the necessity to make an application within 14 days of the issuance of a certificate under s.369 of the FW Act, until the FWA File was examined on 30 October 2012. Such is the paucity of evidence, however, from both the applicant and the applicant’s lawyer that it is not apparent that the applicant’s lawyer knew what stage the FWA proceedings were at when he was engaged, or at any time prior to 30 October 2012, and, in the circumstances, it cannot safely be concluded that there was representative error. The second might be the totality of events after 30 October 2012, but there is no discernable representative error of significance where:
a)the applicant knew that the substantive application was already significantly out of time and there is no evidence of urgency on his part; and
b)the events of 12 to 15 November 2012 in relation to the signing and filing of various documents occurred in the last four days of a 57 day delay.
The applicant’s lawyers’ actions in the matter are not sufficient, on the evidence, to amount to representative error such as to exculpate the applicant.
[55] School Bus Contractors IR at 340-344 per Lucev FM; FMCA at paras.47-67 per Lucev FM, and cases there cited.
The Court has concluded that the explanation for the more than eight week delay is generally unsatisfactory, but in particular:
a)neither the applicant nor the applicant’s lawyer have fully or frankly, and in the case of the applicant’s lawyer at all, disclosed the facts sufficiently, or put the best, or sometimes any relevant, evidence before the Court, so as to properly explain the delay; and
b)there was no urgency exhibited in having the substantive application filed, and especially after 30 October 2012 when both the applicant and the applicant’s lawyer already knew that the application was then already almost six weeks out of time.
In all of the above circumstances, the Court considers that there is no adequate explanation for the delay in the circumstances of this case.

Other action

Under the Brodie-Hanns principle the Court looks to see if the applicant has taken action to contest the termination, other than under the FW Act. There is no evidence of action taken by the applicant to contest the termination other than by way of applying to FWA under the FW Act.

Prejudice

Mere absence of prejudice is an insufficient basis on which to grant an extension of time. That said, there is no evidence of prejudice to the respondent in these proceedings, save for the obvious prejudice arising from the effluxion of the 14 day time limit, and the considerable, and for reasons set out above, unsatisfactorily unexplained, subsequent delay of more than eight weeks before the application was filed, as a consequence of which the respondent might well have been entitled to consider that the matter was at an end.

The merits of the application

The material before the Court in relation to the merits of the application in this case all comes from the Applicant’s Affidavit and Claim Form.
At Part G of the Claim Form the applicant sets out an assertion that his employment was terminated in contravention of s.340 of the FW Act because he exercised workplace rights:
a)to make a complaint or inquiry in relation to his employment;
b)to work in a safe workplace or environment; and
c)to be paid amounts payable in full.
The facts relied upon by the applicant are as follows:
a)that on 24 July 2012 he made a complaint to the respondent’s human resources manager about safety breaches and bullying by his supervisor, and requested that he be moved to another crew or for another supervisor to oversee the crew that he was in;
b)at the Meeting, attended by the respondent’s human resources manager and another manager, the applicant complained about the safety and bullying and related issues, and also complained about potentially having been underpaid;
c)it was agreed at the Meeting that the applicant would be taken off his present crew and reassigned to another crew or assigned other duties as appropriate;
d)following the Meeting there was no further contact with the applicant in relation to those issues, until the applicant contacted the respondent’s underground crew supervisor on 8 August 2012, who arranged work for the applicant;
e)at approximately 7.30am on 15 August 2012 the applicant was told by the respondent’s underground crew supervisor that he was a casual worker and that there was no further work for him and that he could be rostered off; and
f)later on 15 August 2012 the applicant was told – he does not say by whom - that his employment was terminated because he could not work with his former supervisor, and the applicant then again stated:
i)that he was being subjected to workplace bullying and that there were serious safety issues with his crew; and
ii)requested he be transferred to another crew or for another supervisor to oversee his crew,
and also said that he was a permanent employee, not a casual employee.[56]
[56] Claim Form, Part G, Applicant’s Affidavit, paras.12-14.
The applicant also indicated that the respondent may seek to argue that it had the right to dismiss the applicant under the probationary period provisions in the applicant’s contract of employment, but that this overlooks the fact that his employment was terminated, at the time it was terminated, as a casual. In that regard, the Court observes that there is no evidence before the Court as to the terms and conditions of the contract of employment between the applicant and the respondent, save for the applicant’s assertion that he was a permanent employee, and not a casual employee.[57]
[57] Applicant’s Affidavit, para.14.
The relief sought is set out at Part H of the Claim Form. There is no claim for underpayment. All claims relate to compensation for loss from 15 August 2012 to the date of hearing, and future losses from the date of hearing, plus costs. Reinstatement in employment is not sought by the applicant.
The applicant raises what he says are “significant health and safety issues” which were allegedly raised with the respondent prior to his dismissal. It is unnecessary to set those issues out for present purposes.[58] The applicant goes on to observe that:
A major concern of mine is the safety of other employees who continue to work for the Respondent. We worked in an underground mine. The work is dangerous and there is no room for the compromising of safety as it is ultimately my former work colleagues who will pay the price.[59]
[58] Applicant’s Affidavit, para.11, but see para.12 above.
[59] Applicant’s Affidavit, para.15.
For the purposes of the present application the actual existence of the health and safety issues may not be relevant. The substantive application, however, concerns whether or not the applicant was terminated because he exercised workplace rights, and not whether the factual matrix behind those complaints is in fact itself correct. Thus, whether or not the workplace was in fact safe is not in issue, at least directly, and nor is it relevant to any order for reinstatement, because none is sought. No relief is sought from this Court (assuming that some form of relief could be crafted) which actually deals with the substance of the alleged health and safety issues. Despite the manifest concern evinced by the applicant there is no evidence of any action taken by the applicant to bring these matters to the attention of an inspector under the Occupational Safety and Health Act 1984 (WA)[60] who has the power to inquire into such matters[61] and in respect of which the three year time limit[62] in which to bring an action for breach of the respondent’s duty to provide and maintain a safe working environment,[63] has not expired.
[60] “OSH Act”.
[61] OSH Act, s.43(1).
[62] OSH Act, s.52(3).
[63] OSH Act, s.19.
It is not for the Court to determine the substantive application at this stage, although an extension of time would not be granted if the substantive application was not reasonably arguable. If, however, the prospects of success of a substantive application are plainly strong or plainly weak, that may be a relevant consideration having regard to the nature and strength of other factors.[64] It is not, however, the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significance prejudice suffered by the respondent, an extension of time should be granted.[65]
[64] Hamden v Secretary, Department of Human Services [2013] FCA 3 at para.40 per Besanko J; City of Canning v Avon Capital Estates (Australia) Ltd (2009) 169 LGERA 15 at 22 per Wheeler JA (Martin CJ agreeing at 17); [2009] WASCA 120 at para.17 per Wheeler JA (Martin CJ agreeing at para.1) (“City of Canning”).
[65] Mytton-Watson v Commonwealth Bank of Australia [2012] WASCA 232 at para.33(h) per Newnes and Murphy JJA, following City of Canning LGERA at 22 per Wheeler JA (Martin CJ agreeing at 17); WASCA at para.16 per Wheeler JA (Martin CJ agreeing at para.1).

In the circumstances, it appears that the applicant may have an arguable case. The paucity of the evidentiary and other material presently before the Court does not assist the Court in determining whether the case is a weak or strong case, or where on the scale between those two positions, this case lies. The most that can be said is that the substantive application appears to be arguable, and that is a factor which must be taken into account in exercising the Court’s discretion.

Consideration of fairness between the applicant and other persons in a like position

There is no evidence of persons in a like position, and the issue of consideration of fairness as between the applicant and those other persons did not arise in submissions.

Consideration

In making its discretionary judgment in order to determine whether an extension of time in which to file the substantive application ought to be granted, the Court has taken into account all of the matters outlined above, which in summary indicate that:
a)the substantive application is a substantial period out of time, and the reason for that delay has not been satisfactorily explained in circumstances where there has not been full and frank disclosure sufficient to properly explain the delay, and a lack of urgency has been exhibited in relation to the delay, especially after it was realised that the time for the filing of the substantive application had already expired;
b)save for the making of the requisite applications under the FW Act there has been no other action taken by the applicant to make the respondent aware of the applicant’s dissatisfaction with the decision to terminate the applicant;
c)there is prejudice to the respondent by reason of the respondent being in a position, as a consequence of the effluxion of time for the filing of the substantive application, where it was entitled to consider that there would be no further litigation in this matter, and especially so given the relatively substantial delay; and
d)the application appears to be arguable on the merits.
In the final analysis, the nature of the unsatisfactory explanation for the delay tips the balance of the Court’s consideration of this matter decisively against a grant of leave for an extension of time in which to file the substantive application. Although this is not a case of gross inaction,[66] it is a case of sufficiently substantial inaction and failure to disclose by the applicant, and the applicant’s lawyer, to warrant a refusal of the application to extend time. The other factors might be seen to tend to balance one another out, although the prejudice arising from a relatively substantial delay might also be said to tend in favour of a refusal to grant an extension of time in which to file the substantive application.
[66] Compare Comcare v A’Hearn (1993) 45 FCR 441.

Conclusions and orders

The Court has concluded that the applicant has failed to make out a case warranting an order for an extension of time in which to file the substantive application. There will, therefore, be orders in the following terms:
a)that the application for an extension of time in which to file the application be dismissed;
b)that the application be dismissed; and
c)that any application for costs under s.570 of the Fair Work Act 2009 (Cth) be made by way of written submission within 7 days, with any response to such application also to be made by way of written submission to be filed within a further 7 days, with the costs application to be determined on the written submissions filed.
The Court will hear the parties as to costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 15 February 2013