Molini v S J Display Group Pty Ltd

[2020] FCCA 2390

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOLINI v S J DISPLAY GROUP PTY LTD [2020] FCCA 2390

Catchwords:
INDUSTRIAL LAW – extempore judgment on application for extension of time of one day.

Legislation:

Fair Work Act 2009 (Cth), ss.370, 371(2)

Cases cited:

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

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8.

Clarke v Service to Youth Incorporated [2013] FCA 1018.

Applicant: FAB MOLINI

Respondent: S J DISPLAY GROUP PTY LTD

File Number: MLG 1493 of 2020

Judgment of: Judge Burchardt

Hearing date: 20 August 2020

Date of Last Submission: 20 August 2020

Delivered at: Melbourne

Delivered on: 20 August 2020

REPRESENTATION

Advocate for the Applicant: Mr Jewell

Solicitors for the Applicant: McDonald Murholme Solicitors

Counsel for the Respondent: Mr Avallone

Solicitors for the Respondent: Jag Lawyers

ORDERS

1. The matter be listed for directions to the Dandenong Registry before Judge Burchardt on 16 September 2020 at 9:00am via telephone link.

2. An extension of time be granted to the Applicant pursuant to section 370 of the Fair Work Act 2009 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1493 of 2020

FAB MOLINI

Applicant

And

S J DISPLAY GROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this matter, the applicant seeks an extension of time of one day. That Application was made pursuant to section 370(a)(ii) of the Fair Work Act 2009 (Cth), which relevantly provides that a person must not make a general protections court application unless, relevantly, the general protections court application is made within 14 days after the date the certificate is issued or there has been such period as the Court allows on an application made during or after those 14 days.

2. It should be noted that there are no statutory criteria, therefore, for the exercise of the discretion to extend time.  It is clear and obvious that it must be exercised judicially. 

3. Reference has been made by both parties to the decision of Marshall J in the well-known case of Brodie-Hanns v MTC Publishing Ltd (1995) 67 IR 298 in which His Honour Marshall J set out a number of matters which would be described as a summary of principles applicable to applications of this sort, and I do, of course, have regard with respect to those, although I would echo something said in a slightly different context.

4. As I say, there is no statutory criteria and the matters his Honour sets out are not - to adopt a phrase taken from McAlary-Smith (Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8) - a rigid catalogue of matters requiring consideration.

5. In the very helpful submissions of the respondent (paragraph 25) there is a quotation from the judgment of White J in Clarke v Service to Youth Incorporated [2013] FCA 1018. I propose to read the following:

   Brodie-Hanns was decided before the High Court’s decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case, after reviewing the rationale for limitation periods, McHugh J (with whom Dawson J agreed) said at [553]:

   A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society.  It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.  A limitation period is the general rule; an extension provision is the exception to it.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. 

6. With respect, I bear that observation well in mind. 

7. To continue the quote:

   Similarly, Toohey & Gummow JJ said at [547]:

   The discretion is to order an extension of the limitation period.  It is a discretion to grant, not a discretion to refuse, and on well-established principles an applicant must satisfy the Court grounds exist for exercising the discretion in his or her favour.  There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of discretion.  But the ultimate onus of satisfying the Court that time should be extended remains on the applicant.

   Section 371(2) of the Fair Work Act is different from the legislative provision considered in Taylor. In addition, the 14-day period it fixes is much shorter than the three-year period which the plaintiff sought to extend in that case. Nevertheless, I consider that the observations in Taylor just quoted are pertinent in the present context. That is especially so given that one of the forms of relief sought by the present applicant is an order that her employment be reinstated. Generally, the longer the period from a termination, the more difficult reinstatement of employment will be.

   The relatively short limitation period of 14 days may be understood as a legislative recognition of that difficulty.  The Parliament intends that applications under section 371 should be brought promptly so that the practical difficulties which an order for reinstatement can occasion can be minimised.  In my opinion, this is an important consideration in relation to applications of the present kind.  Accordingly, I proceed on the basis that it is for the applicant to satisfy the Court that the extension of time is appropriate.  That onus is to be discharged in the context that the legislature has fixed a short limitation period.

8. In this particular instance, the parties have devoted much time and energy to the question of alleged representative error.  I have, of course, examined the affidavit material and will come to it momentarily.  I repeat that in the context of interlocutory proceeding, it is not, in my view, appropriate to embark upon detailed cross-examination. 

9. In Mr Molini’s first affidavit sworn on 5 June 2020, he relevantly deposed that the certificate was granted on 27 April 2020.  On 26 April, he contacted Mr Tindley.  On 3 April, Mr Tindley alleged he told him that he had until next Friday to file his Application.  I note that in the affidavit, the words “8 May” are in brackets after the word “Friday,” and as I would construe that affidavit, it was not asserted by Mr Molini that the words “8 May” were actually said.

10. The affidavit went on to depose that Mr Tindley told him to think about the matter over the weekend and give him instructions on Monday, 5 May.  He asserted that there were discussions as to costs and he was told to approach the Fair Work Commission.  He then contacted McDonald Murholme on 5 May and perhaps told them that he had until 8 May to file the application. 

11. On 7 May, Mr Tindley told McDonald Murholme the application was due that day.  That was, of course, wrong.  It was one day out.  The application was promptly filed on the same day.

12. On 13 August 2020, Mr Tindley filed an affidavit.  So far as specific days were concerned, and in describing his conversation with Mr Molin, the words of the affidavit read “I do not recall specifying a day.”  He went on to depose that he referred to “the following week” and that he had not advised Mr Molin to go to the Fair Work Commission.

13. Mr Molini’s second affidavit, which is undated and unsworn, I presume, because of COVID difficulties, accepts that Mr Tindley could have said, “By the end of next week” which he took to be Friday. 

14. Relevantly, on 19 August 2020, Mr Tindley deposed that he had discussed costs with Mr Molini and it was possible he mentioned the Fair Work Ombudsman.

15. Taking this material as a whole, it is clear on any view that Mr Molini was told he had until the following week to file his application.  It is equally clear that Mr Tindley was operating on an appreciation that the last date for filing was 7 June, which was wrong. 

16. Mr Tindley does not recall mentioning a specific day, but the applicant Mr Molini does.  He acted on that state of mind because that is what he informed McDonald Murholme.  In my view, it is more probable than otherwise that Mr Molini’s recollection is correct, not least because it is clear that all times Mr Molini wanted to pursue the matter.  He has taken relatively vigorous steps to do so. 

17. He would never have wantonly gone over time.  It is far more probable, in my view, that his failure to file in time does, indeed, arise out of what Mr Tindley told him, namely, that he had until the end of the following week in which to file. 

18. On that footing, representative error is clearly established.  However, even if that were not the case, at worst, it is confusion on the applicant’s part arising from a misunderstanding with his solicitor.  It is simply not the case that it is a rigid and iron rule that in every application of this sort, an applicant has to establish representative error.  A case must self-evidently be examined on its overarching merits. 

19. First, this application was one day late.  It is as small an application for an extension of time as is imaginable.  As I have indicated, I think it was caused by representative error, but even if it was not, the applicant’s conduct was not deliberate and arose from what in the circumstances I would find to be an understandable a measure of confusion.  Second, there is no suggestion whatsoever that there is any prejudice to the respondent arising out of the delay, although, of course, if an extension is granted, they will have to conduct proceedings that they would otherwise not have to.

20. Next, on any view of the matter, the applicant’s case cannot be assessed as being so devoid of merit that an extension of time is inappropriate.  Indeed, it is quite plain from the application that there may be significant potential losses sought in the ultimate outcome. 

21. Whether or not - and this is a matter of utterly preliminary impression - some of the matters said to give rise to what could be characterised as complaints indeed raise that high will remain to be seen, but no one has suggested – it is to the respondent’s credit this is so - I can take the question of the merits of the application as a negative factor in assessing the applicant’s claim..

22. In my view, the administration of justice clearly requires an extension of time in these circumstances, and I am going to grant it, but I want to say a couple of other brief remarks before I leave the matter.  I have read the entirety of this file.  I have noted and read the copious correspondence passing between the parties.  I have noted the all too frequent disputes and fights over subpoenas and the like before the registrars. 

23. I am sorry to have to say this, but this, in my view, is from the book of how not to conduct litigation in this modern era.  This kind of extraordinary expenditure of time and money over a one-day extension is of no credit to anybody involved in it, and seeing this matter is in my docket.  I would urge the parties to try and approach it on a more cooperative basis as we move forward.

24. I note that the applicant has sought to reserve a position with respect to costs.  I do not propose to hear arguments about costs.  I am not going to make any Order for costs.

25. First, the applicant was late and is seeking the indulgence of the court.  He was legally represented throughout.  That agitates violently in my view, against him being given an Order for costs.  Second, of course, the respondent should never have opposed the application. On no view of the matter is this a case in which I am going to make an Order for costs in favour of either party.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 20 August 2020