Morrison v ISS Australia T/A ISS Facility Services (No.2) - [2019] FCCA 1628

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

Cases cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
CFMEU & Anor v Form 700 Pty Ltd & Ors [2017] FCCA 136

Morrison v ISS Australia T/A ISS Facility Services Pty Ltd [2019] FCCA 1183

Ryan v J-Corp Pty Ltd [2018] FCCA 2403
Transport Workers’ Union of Australia v School Bus Contractors Pty Ltd [2011] FMCA 28

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1628
Decision Date: 13 June 2019

CaseChat Overview and Summary

In *Morrison v ISS Australia T/A ISS Facility Services (No.2)*, the applicant, Morrison, sought an extension of time to file an application, which had already been heard substantively by Kendall J of the Federal Court of Australia. The dispute arose from Morrison's desire to pursue an industrial law claim after the substantive hearing had concluded.

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