FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORRISON v ISS AUSTRALIA T/A ISS FACILITY SERVICES (No.2) | [2019] FCCA 1628 |
| Catchwords: INDUSTRIAL LAW – Application for an extension of time after substantive application heard – principles to be considered – fairness to applicant in light of alleged error on part of solicitor – both parties had benefit of full hearing on substantive application – no evidence of prejudice – extension of time granted. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 370 |
| Applicant: | DAMIEN ANDREW MORRISON |
| Respondent: | ISS AUSTRALIA T/A ISS FACILITY SERVICES |
| File Number: | PEG 38 of 2014 |
| Judgment of: | Judge Kendall |
| Hearing date: | 12 June 2019 |
| Date of Last Submission: | 12 June 2019 |
| Delivered at: | Perth |
| Orders Pronounced: | 12 June 2019 |
| Delivered on: | 13 June 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms C Wright (In-house) |
ORDERS (as made 12 June 2019)
Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth), the applicant may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s.368 of the Fair Work Act 2009 (Cth) on 28 January 2014 be extended to and include 12 February 2014.
The applicant file and serve any affidavits on the issues of compensation and penalty by 9 July 2019.
The respondent file and serve any affidavit in response by 6 August 2019.
The applicant file and serve an outline of submissions on the issues of compensation and penalty by 27 August 2019.
The respondent file and serve an outline of submissions in response by 17 September 2019.
The matter be listed for hearing on compensation and penalty on a date to be fixed.
Formal reasons for judgment be delivered from Chambers at a later date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 38 of 2014
| DAMIEN ANDREW MORRISON |
Applicant
And
| ISS AUSTRALIA T/A ISS FACILITY SERVICES |
Respondent
REASONS FOR JUDGMENT
Introduction
On 12 June 2019, this application for an extension of time was heard by this Court. Having heard read the materials and noting that the parties had nothing further to add from what was advanced in written submissions to the Court, the Court ordered that:
1. Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth), the applicant may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s.368 of the Fair Work Act 2009 (Cth) on 28 January 2014 be extended to and include 12 February 2014.
2.The applicant file and serve any affidavits…
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- Case
- [2019] FCCA 1628
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether to grant an extension of time for the applicant to file their substantive application, notwithstanding that the merits of that application had already been fully argued. The Court was required to consider the principles governing applications for extensions of time, particularly in circumstances where the applicant alleged an error on the part of their legal representative.
Kendall J reasoned that while there is a general requirement for applications to be filed within prescribed time limits, the Court retains a discretion to extend time. In this instance, the Court found that both parties had already participated in a full hearing on the substantive application, meaning both had the benefit of presenting their case. Crucially, there was no evidence of prejudice to the respondent, ISS Australia, arising from the delay. Applying these considerations, the Court determined that it was fair to grant the extension of time. The Court made orders granting the extension of time.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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