Molony v ATM Logistics Pty Ltd

[2018] FCA 640

FEDERAL COURT OF AUSTRALIA

Molony v ATM Logistics Pty Ltd [2018] FCA 640

File number(s):

VID 1374 of 2017

Judge(s):

O'CALLAGHAN  J

Date of judgment:

8 May 2018

Catchwords:

PRACTICE AND PROCEDURE – General protections claim under Fair Work Act 2009 (Cth) – application for extension of time – whether an extension of time is appropriate – application allowed – whether applicant’s solicitor should indemnify client for costs ordered to be paid to the respondents

Legislation:

Fair Work Act 2009 (Cth), ss 356, 370, 570

Federal Court of Australia Act 1976 (Cth), s 43(3)

Cases cited:

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

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

Date of hearing:

6, 19 April 2018

Registry:

Victoria

Division:

Fair Work Division

National Practice Area:

Employment and Industrial Relations

Category:

Catchwords

Number of paragraphs:

17

Counsel for the Applicant:

Mr J McKenna

Solicitor for the Applicant:

Behan Legal

Counsel for the Respondents:

Mr B J Heath

Solicitor for the Respondents:

Carter Newell Lawyers

ORDERS

VID 1374 of 2017

BETWEEN:

EOIN MOLONY

Applicant

AND:

ATM LOGISTICS PTY LTD ACN 082 110 003

First Respondent

SCOTT TIBBITS

Second Respondent

JOHN TIBBITS

Third Respondent

JUDGE:	O'CALLAGHAN  J
DATE OF ORDER:	8 MAY 2018

THE COURT ORDERS THAT:

1.The applicant’s interlocutory application dated 2 February 2018 (the application) be allowed.

2.Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth), time be extended until 15 December 2017 for the commencement of a court application for the claims made in the proceeding pursuant to s 356 of the Fair Work Act 2009 (Cth).

3.The applicant pay the respondents’ costs of the application.

4.The applicant’s solicitor, Mr Francis Ruggiero, indemnify the applicant in respect of the costs that the applicant is liable to pay to the respondents by virtue of order 3.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1. This is an application in which the applicant, Mr Molony, seeks an order pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (the FW Act) that the time for the filing of his application under the general protection claims provisions of the FW Act be extended until 15 December 2017. In his general protections claim, Mr Molony seeks relief with respect to the alleged termination of his employment with the Respondents.

2. An application such as Mr Molony’s must be brought within 14 days after the Fair Work Commission (FWC) issues a certificate under paragraph 368(3)(a) of the FW Act stating that the FWC is satisfied that all reasonable attempts to resolve the dispute have been (or are likely to be) unsuccessful. In this case, such a certificate was issued on 29 November 2017. It follows that the originating application in this proceeding, in so far as it made general protection claims, was required to be filed on or before 13 December 2017. It was not filed until 15…