Mukai v Wade Business Trust trading as Colac Motorcycles
[2024] FedCFamC2G 1440
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mukai v Wade Business Trust trading as Colac Motorcycles [2024] FedCFamC2G 1440
File number(s): MLG 3660 of 2024 Judgment of: JUDGE MANSINI Date of judgment: 19 December 2024 Catchwords: FAIR WORK – general protections court application – application filed out of time – where there is no evidence of explanation for delay – where application can not succeed – leave to file outside statutory timeframe refused. Legislation: Fair Work Act 2009 (Cth) ss.365, 368, 370
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 10 December 2024 Place: Melbourne Solicitor for the Applicant: Katsuda Synergy Lawyers Solicitor for the Respondent: WestmoreJacobs ORDERS
MLG 3660 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HIROAKI MUKAI
Applicant
AND: THE WADE BUSINESS TRUST T/A COLAC MOTORCYCLES
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application for leave to file the application accepted for filing on 29 October 2024 outside the proscribed time is refused.
2.No order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
Before the Court is an application for an extension of the time in which to file an application alleging dismissal in contravention of various general protection provisions of the Fair Work Act 2009 (Cth) (Act). For the reasons that follow, the application was filed 5 days after the expiry of the statutory timeframe and, not being satisfied that this is an appropriate case to allow an extension of the filing period, leave is refused.
THE EXTENSION OF TIME APPLICATION
A person who is entitled to apply under s.365 for the Fair Work Commission (Commission) to deal with a dispute must not make a general protections court application in relation to the dispute unless the Commission has issued a certificate under s.368(3)(a) of the Act and the application to the Court is made within 14 days after the day the certificate is issued or within such further period as the Court allows on an application made during or after those 14 days: s.370 of the Act.
In the present case, the Commission issued a certificate in relation to the dispute on 10 October 2024 and the application to this Court was required to be made by or before 24 October 2024.
The substantive application was not filed in the approved form, and therefore was not made in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), until 29 October 2024. Accordingly, the application was made 5 days after the expiry of the statutory timeframe.
On 28 November 2024, the Applicant filed an affidavit evidencing service of the originating application and form 2 on the Respondent on 11 November 2024 by pre-paid post in an envelope addressed to the registered office of the Respondent.
On 10 December 2024, this matter was programmed for initial hearing before the Court as presently constituted. On that occasion, each party was respectively represented by a solicitor advocate (with the Applicant’s representative being permitted to appear via MS teams at their request).
At hearing, the Applicant’s representative confirmed that no evidence had been filed in support of the Applicant’s request for an extension of the time for filing. Both parties sought to rely on an exchange of correspondence between them (a letter of the Respondent’s representative dated 29 November 2024 outlining grounds of opposition to the application and a letter of the Applicant’s representative in response dated 9 December 2024 which was emailed to chambers on that day). Some brief oral submissions were made before the Court and neither party accepted the Court’s invitation to request a program for filing of further material.
Whether to extend the time for filing
An application alleging dismissal in contravention of the general protections provisions of the Act not made within 14 days of the Commission’s certificate may be made within such further period as the Court allows.
The principles to be applied by the Court when considering whether to exercise the discretion to extend time are not “fixed”. However, the factors identified in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Marshall J) at 299-230 have been regularly transposed and applied to this jurisdiction.
The onus rests with an applicant to satisfy the Court that grounds exist for exercising the Court’s discretion to grant an extension of time in their favour and the named respondent bears an evidentiary onus to raise any consideration telling against the exercise of the Court’s discretion: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Toohey and Gummow JJ) at 544 and 547.
I turn now to consider the facts and circumstances of this matter in light of the established (albeit non-exhaustive) principles on what is before the Court.
Explanation for the delay
There was no evidence before the Court attesting to the Applicant’s explanation for the delay in filing the general protections application.
According to the Applicant’s representative’s letter of 9 December 2024, electronic lodgement of the application was attempted via the Court’s filing system on 24 October 2024. The letter claims that, on an unknown date, the Court’s Registry informed the Applicant’s representative that the application and the accompanying form 2 were incorrectly submitted as a single document and instead were required to be attached separately. The letter further claims that, on an unknown date, the Applicant encountered “technical difficulties” when attempting to correctly file the originating documents. There was no further elaboration on the nature of those difficulties.
Ultimately, on 29 October 2024, the Applicant lodged the originating documents by email and the originating documents were accepted for filing by the Registry of this Court.
There is no evidence before the Court to explain the reason for the delay. Taking the Applicant’s case at its highest, the application was first sought to be filed on the last day of the period in which it could be filed but some technical difficulties were experienced. There was no submission made as to why the Applicant, who was represented by a solicitor, waited until the last moment to file his materials only to experience an unparticularised issue, nor was there any explanation as to why the ultimate method of filing (by email) was not availed of at that time.
Absent evidence of the events and importantly when they occurred, the Court is not able to be satisfied of an acceptable or reasonable explanation for the delay. This weighs against the grant of an extension of the time for filing.
Prejudice
There is no particular prejudice raised by the Respondent, nor do I consider any particular prejudice would fall on the Respondent were an extension granted. The absence of prejudice is not determinative and I consider this a neutral factor in the present case.
Merit of the substantive claim
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether to exercise the Court’s discretion under s.370(a)(ii) of the Act.
The substantive application is affected by an irregularity, which was not contentious and accepted as requiring amendment. Namely, the Applicant had not named a legal person as respondent to the claim.
However, there is a more fundamental issue with the substantive application as filed on 29 October 2024. The application refers to reliance on ss.340 and 341 of the Act and includes a series of generalised claims but does not articulate nor make out a cause of action by reference to material facts. Indeed as much was acknowledged to the extent that the Applicant foreshadowed an application to amend the pleadings.
It may be accepted that, were the time for filing extended and the claim allowed to proceed, there would be opportunity to rectify irregularities via adoption of case management procedures to the time and expense of a properly named respondent and utilisation of Court resources. Having regard to the developments in the proceedings to date I am not satisfied that there would be any utility to that exercise where, on what is before the Court, there is an application against no person that can be sued and does no more than inadequately cite without making out the basis for any cause of action arising under the Act. Whilst an amendment was foreshadowed, there was no articulation of precisely what would be sought as for the Court to understand whether or how it may affect an assessment of the merits of the substantive claim.
On the face of the materials as presently before the Court and without more, the substantive application lacks merit. In the context of a claim for imposition of pecuniary penalties, for which some precision is required so that the respondent may know the case against them, this factor weighs against the grant of an extension of the time for filing.
CONCLUSION
That the Court’s Rules provide a short timeframe for filing applications of this nature reflects the intention that an application of this kind must be made promptly and without delay. Whether to extend the proscribed time for filing is at the broad discretion of the Court having regard to the particular circumstances of the case.
In weighing the relevant factors, I am not satisfied that it is appropriate to exercise the discretion at s.370(a)(ii) and am minded to refuse to allow further time for filing of the application.
The application must be dismissed. Having regard to the statutory limitation at s.570 of the Act, there will be no order as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 19 December 2024
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