Mysko v Commonwealth of Australia as Represented BY the Department of Agriculture
[2020] FCCA 2785
•14 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MYSKO v COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY THE DEPARTMENT OF AGRICULTURE | [2020] FCCA 2785 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time Application – admitted error by Applicant’s lawyer in failing to file Application in this Court after certificate issued by the Fair Work Commission – very short delay in filing Application – Applicant’s lawyer offered to pay the costs of the Respondent regarding the extension of time Application which offer was rejected – Respondent accepted relatively little prejudice to it if extension granted – consideration of principles in the Legal Services Directions and Model Litigant Rules – extension of time granted – costs of Applicant reserved. |
| Legislation: Fair Work Act 2009 (Cth): ss.368, 370, 570 Legal Services Directions (Cth) 2017 |
| Cases cited: AON Risk Services Limited v Australian National University (2009) 239 CLR 175 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Clark v Ringwood Private Hospital (1997) 74 IR 413 Comcare v A’Hearn (1993) 45 FCR 441 Darlaston v Parker (2010) 189 FCR 1 McDonald v Parnell Laboratories (Aust) (No.2) (2007) 164 FCR 591 Mees v Kemp (2005) 141 FCR 385 Shea v TruEnergy Services Pty Ltd (No.1) (2012) 204 FCR 456 |
| Applicant: | ROXANNE MYSKO |
| Respondent: | COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY THE DEPARTMENT OF AGRICULTURE |
| File Number: | CAG 84 of 2019 |
| Judgment of: | Judge W J Neville |
| Hearing date: | 19 August 2020 |
| Date of Last Submission: | 19 August 2020 |
| Delivered at: | Canberra |
| Delivered on: | 14 October 2020 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Adero Law |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
An extension of time be granted to the Application filed on 10 December 2019 and the matter proceed as if it was filed within time.
The matter be referred to a Registrar for mediation pursuant to Section 34 of the Federal Circuit Court of Australia Act 1999 and Division 27.2 of the Federal Circuit Court Rules 2001.
On the Court’s own motion, the Applicant’s cost of this Application be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 84 of 2019
| ROXANNE MYSKO |
Applicant
And
| COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY THE DEPARTMENT OF AGRICULTURE |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant was employed, through the assistance of a well-known recruitment agency (“the agency”), by the Respondent Department (“the Department”). Despite being provided with much material, particularly by the Respondent, curiously and unfortunately the Court does not have copies of either the contract between the agency and the Department, or between the Department and the Applicant.
The Applicant moved from Adelaide to Canberra to take up her position with the Department. Unfortunately, within a relatively short period of time time two things happened: (a) the Applicant complained, inter alia, about bullying she experienced from a person (or persons) within the Department, and (b) within approximately 10 weeks or so, the direction in which the Department proposed to head, with which the Applicant was to assist, changed. This rather sudden change in direction led, according to the Applicant and in certain ways acknowledged by the Respondent, to the termination of her employment. It is from that termination that the Applicant seeks relief from this Court.
Details regarding said “change in Departmental direction”, at this stage, are also curiously and unfortunately sparse. As noted in the course of the interlocutory hearing, given how much planning and all else that usually takes place in governmental departments, such a comparatively sudden change in direction after such a relatively short period of time certainly arouses some curiosity as to how and why it occurred, apparently with little or no warning. Explanations (including relevant documentation in support) will, in due course, doubtless be eagerly examined. By way of simple analogy, it might be said that a sudden change in policy direction in a government department is akin (accepting the somewhat indelicate analogy) to a sudden change in course by a super tanker. Such things usually take not a little time, are often quite awkward and difficult to manage, and from time to time, some “damage” of one kind or another can ensue.
Attempts to resolve the matter were undertaken before the Fair Work Commission (“the FW Commission”). The matter did not resolve. The FW Commission issued the requisite certificate under s.368 of the Fair Work Act 2009 (“the FW Act”).[1] That certificate, dated 12th November 2019, bears a note advising that a person who has been dismissed has 14 days within which to make a general protections Application to either the Federal Court of Australia, or to this Court, “unless the Court extends the time for making such an Application.”
[1] A copy of that certificate is located at p.57 of 137 of the Exhibit to Mr Bennett’s Affidavit, affirmed 10th August 2020, filed on behalf of the Respondent.
The Applicant’s lawyers have acknowledged, indeed deposed, that they missed the 14 day period. The acknowledgement of fault on the part of the Applicant’s lawyers has been repeated many times: (a) in an Affidavit of the solicitor with direct carriage of the matter (filed 24th January 2020), and (b) in the serial and unrelenting correspondence between the respective lawyers that has beset the parties for the last 6 months.
The Applicant’s lawyers seek on their client’s behalf the relevant extension of time referred to in the notation on the s.368 certificate.
In resisting the Applicant being granted an extension of time, the Respondent relies in particular upon paragraph 8 of the Legal Services Directions 2017, which refers to “reliance upon limitations periods”. There is a discussion of this paragraph, and not a few others from the Legal Services Directions, later in these reasons. Respectfully, in my view, the Respondent focussed far too narrowly on one single aspect of those Directions and paid little or no attention to other principles contained in them. Had broader attention been given to other details in these Directions it is much more likely that: (a) a more balanced view of the litigation would have been achieved, rather than the more belligerent and intransigent course adopted to date, and (b) the scarce resources of the parties, not to mention the always constrained resources of the Court, could have been better spent in other, more palliative ways. For example, rather than the Respondent playing what might be called something of a “blocking game”, a much more productive course would have been to explore further avenues of resolving, or at least narrowing, the contest. On its face, a rather one dimensional approach was unswervingly taken.
In my view, given the circumstances of the matter, the Department’s response to an extension of time arising from an admitted default by a party’s legal representative, and a missed time-line of just 14 days, was significantly disproportionate.[2] Had the time, effort, and resources (both financial and other) been put into the resolution of the matter, rather than pursuing what might be categorised as a particular and extremely difficult jurisdictional argument, I suggest that the matter may have already resolved.
[2] The somewhat limited, surrounding circumstances, and the admission itself, are set out in Affidavit of Mr Felthouse, affirmed and filed on 24th January 2020. Mr Felthouse deposed that he was the lawyer with the day to day carriage of the matter and that he assisted Mr Markham, the principal of the firm. According to his profile, which is at pp.119 – 120 of the Exhibit to Mr Brennan’s Affidavit, Mr Felthouse was apparently admitted to practice in December 2018. His profile refers to him being a “lawyer” for 1 year and 10 months.
In any event, given: (a) the admitted fault on the Applicant’s lawyers part, and (b) the Department’s acknowledgement during the hearing that, if the extension of time were to be granted, the only possible prejudice it might suffer related to the lack of immediate finality of the matter, for the further reasons set out below, the Applicant should have the opportunity to pursue her claims against the Respondent. On the Court’s own motion, the Applicant’s costs should be reserved.
Before dealing with the substantive Application, one discrete aspect of the hearing should be dealt with at the outset. It concerns the Respondents’ Application in relation to costs. It provides something of a convenient snapshot of the unfortunate circumstances that have given rise to the current imbroglio, and in my respectful view, the inapposite, unfortunate and inopportune procedural choices thus far made.
For more abundant caution, nothing in these reasons should be taken to be any view or comment on any aspect of the substantive claims by the Applicant, or any Response or Defence by the Respondent. Any and all comments here are necessarily confined only to matters directly relevant to the extension of time Application.
Section 570 FW Act & the Respondent’s Application for costs
In resisting the extension of time, as earlier noted, the Respondent also sought an order for costs against the Applicant under s.570 of the FW Act. It was unclear during the interlocutory hearing whether that costs Order was still sought in all of the circumstances of the matter. In general terms, the Court noted that such costs orders were usually made only in the most egregious of circumstances, such as a vexatious Application or where there was “unreasonable conduct.” The Court inquired, again generally, how an extension of time Application regarding a missed time-line of 14 days that arose out of admitted fault by the Applicant’s legal representatives might relevantly come within the terms of s.570.[3] The Respondent’s experienced lawyers said that relevant instructions could be sought in relation to the Court’s inquiries.
[3] Generally, see s.570(2).
In my view, it is apposite to note the following.
Decisions of long-standing indicate that the application of s.570 is similar to the principles that apply in circumstances where an indemnity costs Order is sought. The same and related decisions also confirm that, even if the terms of the section are satisfied, there remains a discretion on the part of the Court to make such a costs Order.
For example, in McDonald v Parnell Laboratories (Aust) (No.2), Buchanan J referred, at [28] – [31], to considerations regarding the awarding of costs, and in circumstances where the Act in question no longer applied, or where the relevant “costs threshold” was crossed, “… there is no reason not to apply ordinary principles [in relation to costs].[4]
[4] McDonald v Parnell Laboratories (Aust) (No.2) (2007) 164 FCR 591. The relevant provisions discussed by his Honour are from the then in force Workplace Relations Act 1996 (Cth), ss.666 and 824.
Further, in the regularly cited decision of Flick J in Darlaston v Parker, his Honour said in relation to s.824 of the Workplace Relations Act 1996, which is relatively comparable to s.570 FW Act, at [259] – [261]:[5]
[259] No conclusion could be sustained that the present proceeding was instituted “vexatiously or without reasonable cause” within the meaning of and for the purposes of s 824(1).
[260] Nor is there considered to be any basis upon which it could be concluded that the Respondents caused the Applicant to incur costs “by an unreasonable act or omission” within the meaning of and for the purposes of s 824(2). The Respondents were entitled to invoke their privilege against self-incrimination and to put the Applicant to the proof of its claims. By doing so, the Respondents could not be said to have acted in an “unreasonable” manner.
[261] But the absence of any power to award costs, it should be noted, does little to facilitate the resolution of proceedings of the present kind in a manner “as quickly, inexpensively and efficiently as possible”: Federal Court of Australia Act 1976 (Cth), s.37M. The balance to be struck between affording Respondents the opportunity to conduct proceedings of the present kind in the manner presently pursued, and to do so in a manner relatively free of any real constraint as to the costs incurred, remains a matter for the Legislature.
[262] The absence of a more traditional power to award costs nevertheless has the potential to place an impediment in the commencement of applications of the present kind and an impediment in the ability of the Court to resolve the real factual and legal matters in dispute in an inexpensive and efficient manner.
[263] There remains, however, no basis upon which any order for costs should be made in the present proceeding.
[5] Darlaston v Parker (2010) 189 FCR 1.
His Honour’s general comments, in my view, remain instructive for the current proceeding, particularly his reference to a party being entitled to prosecute a matter in accordance with usual practice. Putting the opposing party on notice of the other party’s position, as the Applicant has done here, does not, and in my view, could not (without more) constitute acting unreasonably for the purposes of the FW Act.
Cases such as Darlaston v Parker are, as already mentioned, well known and regularly cited in what I will call the Fair Work field of practice. In my view, the combined import of the following factors all strongly militate against the realistic possibility of an adverse Order for costs against the Applicant. Further, as noted below, the Respondent properly conceded during the interlocutory hearing that there would be no relevant prejudice to the Department should an extension be granted, apart from the possible prejudice arising from the assumption that the dispute had reached finality. Why the lack of prejudice was not acknowledged earlier, and/or the following factors reasonably considered, were never explained. The relevant “factors” that militate against any possibility of an adverse costs Order, particularly an indemnity costs Order, at this stage of the proceedings are:
(a)comments such as those made by Flick J in Darlaston, not to mention others of similar focus and outline of principle,
(b)the fact that the litigation remains procedurally in its relative infancy,
(c)the parties had obviously ventilated the general scope of the contest before the Fair Work Commission, thus there can be little surprise for the Respondent of the nature and general detail of the Applicant’s claim,
(d)the frank and ready admission by the Applicant’s lawyer of the error in missing the filing deadline by 14 days, and
(e)the very recent concession by the Respondent that it would suffer no relevant prejudice if leave be granted to allow the Application to proceed 14 days out of time.
In the light of the comments already made, and subject to what is said later in these reasons, in my strong view, the Department seeking an Orders under s.570 against the Applicant, in the circumstances of this matter, bordered on the unconscionable. On the basis of well-known authorities, to some of which I have referred, it should never have been sought. Indeed, although not raised in submissions by the Applicant, it could be viewed as a tactical ploy to bring undue pressure to bear on the Applicant, potentially a less than subtle in terrorem aspect of the matter. I do not suggest that this was in fact the case.
Formally, the Application for costs as sought by the Respondent is dismissed.
Outline of Submissions on behalf of the Applicant
The Applicant’s outline of submissions, filed 24th January 2020, were as follows (emphasis in original):
APPLICANT’S SHORT WRITTEN SUBMISSIONS
Background
1. On 5 November 2019, the parties attended a Fair Work Commission (FWC) conference in the matter of Roxanne Mysko v Commonwealth of Australia as represented by the Department of Agriculture C2019/5693.
2. On 12 November 2019, Deputy President Cross issued a Certificate under s 368 of the Fair Work Act 2009 (FWA).
3. On 10 December, the Applicant filed an application in the Federal Circuit Court of Australia (FCC), 27 days after the issuance of the Certificate.
4. By operation of s 370 of the FWA, the applicant had 14 days to file an application in this Court, or the Federal Court of Australia. That 14-day period expired on 16 September 2016.
Application under the Fair Work Act 2009
5. The Applicant seeks an order pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) extending the time for filing a general protections claim.
Relevant principles
6. Section 370 states:
a. Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).
Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.
7. The extension of time required by s 370 is an extension of time to file the general protections court application.
8. The applicant bears the onus of satisfying the Court that it should exercise its discretion to extend time for filing the application. When considering whether it exercise its discretion, the Court may take in to account the ‘relatively short’ limitation period of 14 days fixed by the Parliament under s 370 of the Act: Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [5] per White J.
9. It is accepted that, while not binding on the Federal Circuit Court, the principles set out in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 are regularly applied by this Court and constitute relevant criteria to be taken in to account in the exercise of its discretion: Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 246 FLR 430; (2011) 201 IR 327. The decision in School Bus Contractors Pty Ltd has been regularly applied by this Court: see Owen v Cudeco Ltd [2013] FCCA 1827 at [7] per Judge Driver, Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472 at [34] per Judge Lucev.
10. In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, Marshall J stated at page 2-3 (square brackets and bold emphasis added):
The relevant principles which should govern the Court’s discretion to extend the time within which an application under s170EA of the Act may be lodged […] briefly stated, the principles are:
a) special circumstances are not necessary, but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend;
b) action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time;
c) prejudice to the Respondents, including prejudice caused by delay will go against the granting an extension of time;
d) the mere absence of prejudice to the Respondents is an insufficient basis to grant an extension of time;
e) the merits of the substantive application may be taken into account in determining whether to grant an extension of time; and
f) consideration of fairness as between the Applicant and other persons is in a like position are relevant to the exercise of the Court's discretion.
Explanation for the delay
11. In Madigan v South Australian Museum Foundation Inc & Ors [2017] FCCA 2165, Heffernan J stated at paragraphs [4]-[5]:
There are no particular criteria or requirements set out in the legislation of which a court must be satisfied in order to grant an extension beyond the 14-day period in which to file the relevant application. Logically, an extension of time must at least be consistent with and facilitate the interests of justice.
It is accepted by counsel for both the applicant and the respondent that principles relevant to the exercise of the court’s discretion to grant an extension of time under the Act were enunciated in Brodie-Hanns v MTV Publishing Ltd.
12. Heffernan J further stated in respect of the adequacy of the applicant’s explanation for the delay at [29]-[30] (bold emphasis added):
In considering the factors identified by Brodie-Hanns the most important matter weighing on the exercise of my discretion is the adequacy of the explanation which has been provided for the delay. I do not regard the respondent’s submission that the applicant himself must share some of the responsibility for these proceedings being filed out of time as a particularly compelling factor. Every matter must of course turn on its own facts. There is no minimum number of times that the applicant should have contacted or attempted to contact his solicitor in order to follow up on his instructions. I am satisfied that the applicant demonstrated through his conduct that he intended at all times to pursue this litigation and that he made reasonable efforts to ascertain that his solicitor had pursued his instructions diligently.
In instructing Mr Starke, the applicant placed himself in the hands of an officer of the Court and was entitled to expect as a bare minimum that he would comply with his instructions and file the matter within time. I am satisfied that the applicant would be significantly prejudiced if the negligent conduct of his solicitor were to deprive him of his right to pursue an application in this Court. I regard that matter as having greater weight than the loss to the respondents of the benefit of the time limit prescribed by Parliament. The explanation proffered by the applicant is adequate in this sense, it establishes that the applicant had always intended to pursue these proceedings and the failure to comply with the time limits arose because of circumstances outside his direct control.
I am satisfied that the applicant did everything that he was required to do in order to advance these proceedings
13. In this matter, the delay was occasioned by representative error.
14. In Clark v Ringwood Private Hospital (1997) 74 IR 413, the then Australian Industrial Relations Commission provided the following non-exhaustive criterion in deciding whether or not representative error constitutes an acceptable explanation for delay:
1. Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
2. A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
3. The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps in inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
4. Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s.170CE(8).
15. It is an established principle that a client should not suffer by reason of an error made by his or her representative: see Stollznow v Calvert [1980] 2 NSWLR 749, Andresakis v Alexus Holdings Pty Ltd [2006] NSWCA 294; (2006) 68 NSWLR 507, Burgoine v Taylor (1878) 9 Ch D 1, R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087, Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, Jess v Scott (1986) 12 FCR 187.
16. Where the error arises by conduct of a representative, it would be in error to treat the error of the representative as being the error of the client: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344.
17. The principle is well-accepted in this Court: see Stephens v Australian Postal Corporation (2012) 202 IR 437, [2010] FMCA 1012 and Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344. In Stephens v Australian Postal Corporation (2012) 202 IR 437, [2010] FMCA 1012, Smith FM observed at [441] that authorities in this area suggest that failings of legal advisers should not necessarily be attributed to their clients who, as a result, find themselves needing an indulgence from the Court or an exercise of a discretionary power to extend a time limit.
18. In this case, the delay was occasioned solely by representative error. The affidavit of Sean Felthouse of 24 January 2020 provides a timeline of the relevant events leading up to the filing of the applicant’s claim 14 days out of time.
19. It is necessary to draw a distinction between delay that is wholly occasioned by the conduct of a representative, and delay to which the client contributed. In this case, the applicant is wholly blameless. No responsibility for the delay in filing the application can be attributed to her. The applicant responded in a timely way to her representatives’ requests for instructions as to her former colleagues. The instructions requested were clearly and promptly given to proceed with the application as soon as possible. The applicant was unaware of the 14-day time limit and relied upon the advice of Adero Law and for her representatives to proceed with care and skill.
20. As above, the delay was occasioned solely by representative error. The applicant provided clear instruction and intention to proceed with the application and to file that application as soon as possible in this Court. To refuse an extension of time would be to visit the error of the applicant’s representative on the applicant, who is blameless.
21. As with Chand v Soft Star Pty Ltd [2016] FCCA 121 the representative error was not a particularly serious one. The representative was absent from work due to illness. That was a circumstance beyond his control. He also failed to properly understand the technical requirements for filing an application. He instructed his legal assistant to file the application. When the deficiencies were drawn to his attention, he promptly took steps to resolve them.
22. In McPaul v CPC Engineering Pty Ltd [2013] FMCA 71, Lucev FM considered the issue of representative error and followed Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28 and the principles referred to in Brodie-Hanns.
23. In these circumstances, there is an acceptable explanation for the delay and, consistent with authority, the Court should not visit the consequences of the delay on the applicant.
Action taken by the applicants to contest the termination
24. The applicant contested the termination by making an application to the FWC and by participating in conciliation before the Commission.
25. The applicant further contested the application by providing her representative with instructions to prepare an application to this Court, with instructions as to the content of the Form F2 Originating Application (F2) and instructions as to the filing of the application.
26. The applicant has taken all reasonable steps to contest the termination.
Applicant’s other claims that remain within time
27. Granting the applicant’s extension out of time will not prejudice the respondent by putting them to the expense of having to defend a claim as the applicant has additional claims that remain within time. Specifically, a contractual claim for payment of notice following the termination of her employment (Notice Pay Claim).
28. The Notice Pay Claim will necessarily entail the same characterisation issues surrounding the nature of the applicant’s employment and the same factual investigation into the circumstances of surrounding the termination of the applicant’s employment as these proceedings.
Prejudice
29. In Griffiths v Power Ledger Pty Ltd [2019] FCCA 2224, Kendall J found at [47]–[39] as to the consideration of prejudice between the applicant and the respondent:
The respondent correctly concedes that they were not prejudiced by the 2-day delay. They do argue, however, that if the extension is granted, they will be put to the “significant expense and inconvenience of having to defend the claim”.
Every party that initiates litigation, or has a proceeding commenced against them, undoubtedly feels “inconvenienced” by the need to litigate.
While the absence of prejudice is not sufficient to warrant an extension of time, the facts here do not weigh against granting an extension of time.
30. The lack of prejudice is not, of itself, a reason to exercise discretion to extend time. Where there is no prejudice to the respondent, this is a neutral consideration.
31. In this matter, there is no unique or peculiar prejudice to the respondent beyond those costs that would otherwise be incurred in the course of the litigation had the applicant’s matter been filed within the statutory 14-day period.
Merits of the substantive application
32. In SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158, Wigney J at [49] noted in consideration of the merits of an application that, in the context of a request for an extension of time, it is generally inappropriate to fully investigate the merits of the substantive case, though obvious strengths or weaknesses may be a factor for or against extending time.
33. At this stage in the proceeding, no conclusive view as to the merits can be formed. However, on the basis of the F2 filed with the application, the applicant establishes the essential criteria for a case of this kind including:
(a) the employment of the applicant;
(b) the relevant industrial instruments;
(c) the inquiries and complaints made by the applicant about her employment; and
(e) the applicant’s dismissal from her employment.
34. If the applicant is successful in establishing those matters by way of evidence, the claim is capable of succeeding. That is particularly so because the applicant has the benefit of s 361 of the FWA which creates a statutory presumption as to the reason for the applicant’s dismissal.
35. At this stage, all that can be said is that the claim is capable of succeeding, which weighs heavily in favour of an extension being granted.
Fairness
36. In Griffiths v Power Ledger Pty Ltd [2019] FCCA 2224, Kendall J found at [48]–[49] as to the consideration of fairness between the applicant and the respondent (square brackets added):
a) The applicant is alleging that the respondent has breached the FW Act. If this is found to have occurred, the respondent should be held to account for any adverse action – not only to compensate the applicant but also to educate and to deter any possible further offences or breaches of the FW Act;
b) any prejudice to be suffered by the respondent (expense and inconvenience) are not matters that are unique or peculiar. They are, rather, par for the course in any litigation (despite the best efforts of this Court to limit costs);
[…]
d) it is in the public interest for those who are found to have breached (which the respondent is not yet found to have and the Court holds new view of) the protections afforded by the FW Act to be held to account.
These issues weigh in favour of granting the 2-day extension of time now sought by Mr Griffiths.
37. The criterion of fairness is concerned with a comparison as between the applicant and other persons in their position. Insofar as the applicant is concerned, persons in her position are able to have their dispute heard and determined by the Court.
38. It would be manifestly unfair to the applicant to be deprived of her right to pursue her claim in circumstances where other applicants are able to do so.
39. The criterion of fairness weighs in favour of the extension being granted.
Conclusion
40. In the present case, the delay in filing the application was wholly due to representative error.
41. For the reasons given, the deficiencies in the form of order sought extending time do not deprive this Court of jurisdiction to grant the extension.
42. To the extent that the Brodie-Hanns factors operate in this case, they weigh in favour of the extension being granted.
43. The principles attaching to representative error weigh heavily in favour of the extension be granted.
44. The appropriate course is for the Court to extend the time prescribed under s 370 of the filing of a general protections court application and for appropriate consequential orders to be made.
In addition to the written submissions, the following brief oral submissions were made at the hearing on 19th August 2020.
The Applicant contended that the actual delay was “9 business days” rather than “14 days.” As noted below, the Respondent said it was in fact 14 days and therefore would be a delay of 10 business days. In my view, little turned on the arithmetical differences other than again to highlight (a) how sternly fought the matter was, and (b) in consequence, the inordinate and “fine-grained” lengths to which the parties were prepared to go in their respective advocacy. To state it, not for the first time, particularly in the light of authorities discussed already and those noted later in these reasons, this was a needless dispute, which was doubtlessly very costly for everyone.
The Applicant further stressed that the response and attitude of the Respondent was disproportionate to the very small delay in filing the Application. This included what the Applicant said was an inappropriate argument, without foundation by the Respondent, that in some unspecified way, the Applicant herself was complicit in, or partly responsible for, the delay that ensued. The Applicant’s lawyer strongly refuted such a contention and confirmed that the Applicant herself was not responsible in any way for the delay in filing the Application. The sole responsibility for the delay in filing was with the Applicant’s lawyers.
The other side of this coin, so to speak, was that there was no basis, as it were, to look for some other, even more egregious, error behind the explanation as admitted in Mr Felthouse’s Affidavit. There were, the Applicant said, no “gaps” or omissions in the Affidavit that admitted responsibility for the error and the circumstances surrounding it.
The Applicant also confirmed that other parts of her claim were relevantly within “time”, although they were subsidiary to the claim arising out of her termination. These subsidiary claims had yet to be particularised. Indeed, the Applicant submitted that, if what might be called her primary claim regarding her termination was permitted to proceed and then prosecuted, it was unlikely that the other subsidiary claims would be pressed.
The Applicant confirmed that her relocation, travel and accommodation costs, in moving from Adelaide to Canberra, forms a head of damage within her primary claim.
Outline of Submissions on behalf of the Respondent
The Respondent’s outline of submissions, filed 10th August 2020, were as follows (footnotes omitted):[6]
[6] The Respondent relied upon an Affidavit of Mr I Bennett, affirmed and filed 10th August 2020. Exhibited to this Affidavit (Exhibit IB-1) were 137 pages that included (a) voluminous correspondence, and telephone conversations, between the parties’ legal representatives regarding the “further reasons” (as alleged by the Respondent) for the omission by the Applicant’s lawyers to comply with the 14 day time limit for filing, (b) a Notice to Admit Facts (and Response) (pp.80 – 83), and (c) professional profiles of three lawyers from the Applicant’s law firm, including photographs of the individuals involved. Why the photographs were included, and seemingly regarded as necessary, was not explained. In my view, this was a tad excessive.
RESPONDENT’S SUBMISSIONS ON JURISDICTIONAL OBJECTION
BACKGROUND
1. Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (FW Act) a general protections court application must be lodged in the Court within 14 days after the s.368(3)(a) certificate is issued by the Fair Work Commission (FWC), or within such further time as the Court may allow.
2. In this case, the FWC issued the s.368(3)(a) certificate on 12 November 2019, meaning that the 14-day time limit for lodging the general protections court application expired on 26 November 2019.
3. The Applicant did not lodge her general protections court application within the 14-day time limit but instead lodged it on 10 December 2019, some 14 days late.
4. The Applicant now applies for an extension of time to 10 December 2019 for lodging her general protections court application.
5. The Respondent opposes the application on the basis that the legislature intends limitation periods to be observed unless the Applicant provides sufficient reasons to persuade the Court that an extension of time is warranted and that has not occurred in the present case.
PRINCIPLES
6. Section 370(a)(ii) of the FW Act provides that a general protections court application must be made within 14 days of the issue of the s.368(3)(a) certificate by the FWC “or within such period as a court allows on an application made during or after those 14 days”.
7. A note to s 370 provides: “In Brodie Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
8. The principles articulated in Brodie Hanns relevant to the exercise of the Court’s discretion to extend the time for lodging the general protections court application are as follows:
a. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
b. Action taken by the applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
c. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
d. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
e. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
f. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
9. It is worth noting the observations of White J in Clarke v Service to Youth Council Incorporated [2013] FCA 1018 as to the relevance of the reference to Brodie Hanns in the note to s 370 of the FW Act. His Honour said (at [5]):
This note appears to be in the nature of a useful reference by the Parliament, i.e. to assist readers in identifying matters which may bear on the exercise of a court’s discretion under the provision. Some authorities have addressed the question of whether the note forms part of the [Fair Work Act 2009 (Cth)] at all (for example, Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 201 IR 327). In my opinion, it is not necessary to consider that question for the purposes of the resolution of the present application. It is sufficient to treat the note as a reference to the kinds of considerations which may be relevant.
10. White J also made the pertinent point that the decision in Brodie Hanns was (at [7], emphasis added):
decided before the High Court’s decision in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (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 provision 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.
Similarly, Toohey and 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 that 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 the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.
11. Accordingly, the Respondent accepts that the principles in Brodie-Hanns v MTV Publishing Limited are relevant for the Court to consider in assessing the Applicant’s application for an extension of time under s 370 (consistent with what this Court has done in numerous previous decisions), however:
a. they should not be treated as a definitive “checklist” or exhaustive statement of the considerations that may be relevant; and
b. the starting point should always be that the 14-day time prescribed by the legislature is no arbitrary time limit but rather one which must ordinarily be observed.
APPLICATION OF PRINCIPLES
Adequate explanation for the delay
12. In Clark v Ringwood Private Hospital (1997) 74 IR 413, the Full Bench of the Australian Industrial Relations Commission (Commission) considered whether to grant an extension of time to permit an application for relief in respect of termination of employment to be submitted some 48 days late in instances where it was alleged that the applicant’s legal representative was at fault. The relevant legislative provision, s 170CE(8) of the Workplace Relations Act 1996 (Cth) (WR Act), provided that an application lodged out of time may be accepted if “the Commission considers that it would be unfair not to do so”.
13. It bears emphasis that the provision in issue in Clark, namely s 170CE(8) of the WR Act, is relevantly different from the provision under consideration in the present case, namely s 370 of the FW Act. Importantly, s 170CE(8) of the WR Act included an express statutory condition for the exercise of the Commission’s discretion to extend time (“the Commission considers that it would be unfair not to do so”) whereas the latter contains no such condition.
14. In Clark, the Full Bench of the Commission endorsed the comments of the Full Bench in Telstra-Network Technology Group v Kornicki (unreported, AIRC, Print P3168, 22 July 1997) at p 10 that:
In enacting s l70CE(8) Parliament has clearly chosen to use different language to that which appeared in the former s l 70EA(3)(h). In particular the words ‘if the Commission considers that it would be unfair not to do so’ suggest that considerations of fairness towards an applicant are central to the exercise of the discretion ...
We agree with Mr Staindl's submission that s 170CE(8) is intended to convey an approach to the exercise of the Commission's discretion which is more generous to applicants than that which prevailed under the former s 170EA(3)(h).2
15. As the Full Bench in Clark stated (at 417-8):
The decision in Komicki makes it clear that s 170CE(8) is intended to convey an approach to the exercise of the Commission's discretion which is more generous to applicants than that which prevailed under the former s 170EA(3)(b).
Indeed, the Full Bench upheld the appeal in Clark precisely because the Deputy President in the decision below had not adopted the “more liberal approach” required by the wording of s 1780CE(8).
16. Accordingly, insofar as the decision in Clark sets down general propositions (which are set out in the Applicant’s Submissions at [14]) applicable to cases in which representative error is alleged to be the reason for failing to lodge a court application within time, they must be understood to have been applied in the context of a more liberal statutory test that was more focused on issues of fairness to an applicant than is the case under s 570(b) of the FW Act which is the provision in issue in the present case.
17. With that qualification in mind, the following comments are provided in respect of those propositions as applied to the present case.
(1) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged
18. It is clear that simply asserting representative error per se will not suffice to establish an adequate explanation for the delay. As was pointed out in Clark and as borne out in the various different decisions in which representative error has been alleged, it will depend on the circumstances.
19. Broadly speaking, the circumstances fall into two categories: (i) circumstances surrounding the representative’s default and (ii) circumstances surrounding the applicant’s conduct.
20. As to the circumstances surrounding the representative’s default, there will typically need to be an explanation from the representative as to what went awry that gave rise to the error. It is not enough for the applicant simply to say that the representative was at fault, or for the representative simply to say that they failed to file the claim within time. There needs to be some detail around why and how the error arose: see, for example, the specific circumstances affecting the representative in the following cases in which representative error was accepted as being an adequate explanation for the delay: Ryan v J-Corp Pty Ltd [2018] FCCA 2403; Robyn Nudd v Commonwealth Bank of Australia [2015] FWC 780 (albeit in the context of an unfair dismissal claim where an exceptional circumstances test applies); Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; and Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28.
21. In the present case, the Applicant’s representative, Sean Felthouse of Adero Law, has affirmed an affidavit in support of the Applicant’s application for an extension of time.3 However, as explained below, it contains minimal detail about the circumstances giving rise to the error. The crux of what Mr Felthouse deposes is as follows:
a. Mr Felthouse is the solicitor assisting Rory Markham of Adero Law on behalf of the Applicant and has had day to day carriage of the Applicant’s matter.
b. Following the conciliation in the FWC, Deputy President Cross issued the certificate under s 368 of the FW Act on 12 November 2019 (although Mr Felthouse does not explain how he knows this or to whom the certificate was sent).
c. The certificate stated that the Applicant had 14 days (i.e. until 26 November 2019) for the filing of further claims in relation to that proceeding.
d. Between receiving the certificate (i.e. 12 November 2019) and the day before the expiry of the 14 day time limit (i.e. 25 November 2019):
i. Mr Felthouse entered into correspondence with the Respondent’s representatives in further attempts to reach a resolution between the parties; and
ii. the Applicant repeatedly expressed her intention “during the expired period” to proceed with an application to the Federal Circuit Court.
e. Between the expiry of the 14-day time limit (26 November 2019) and the day when the Applicant’s claim was actually filed (10 December 2019), Mr Felthouse “was not cognisant” of the expired time limit but was “progressing the applicant’s matter in relation to the evidence-gathering necessary to the applicant’s claim”.
f. On 10 December 2019, Mr Felthouse “became aware of the 14-day limit” and contacted the Applicant to inform her, at which point the Applicant instructed Mr Felthouse to file the claim immediately and seek an extension of time.
g. Mr Felthouse filed the claim later on 10 December 2019.
22. Mr Felthouse does not explain what is meant by not being “cognisant” of the 14-day limit or why that was so, nor how it was that he “became aware” of that limit some 14 days later. Indeed, it remains obscure how it is that Mr Felthouse as a solicitor employed by Adero Law (a firm described as “Employment Law Experts”4) under supervision of Mr Markham (a practitioner described as a “litigation and industrial relations specialist”) could not have known that there was a 14-day time limit (if that is what is meant by not being “cognisant” of it) or why it is that he did not diarise any time limit deadline at all. This is not a case, for example, where the representative has deposed to the firm’s usual practices being interfered with, resulting in the time limit deadline being overlooked. Nor is any further light able to be gleaned from file notes, emails or other records because Mr Felthouse has not attached any such documents to his affidavit.
23. In short, Mr Felthouse’s affidavit amounts to little more than an assertion that it was “his error”. There are no circumstances deposed to that explain how the error came about and therefore whether this is an adequate explanation for the delay.
24. As to the circumstances surrounding the applicant, these are addressed specifically under the following two principles.
(2) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant
25. As the Full Bench elaborated in Clark (at 419-420):
For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of his/her representative and took no steps to inquire as to the status of his/her claim. A different situation exists where an applicant gives clear instructions to his/her representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.
26. The question here is essentially whether the applicant who seeks an extension of time has done everything they needed to do in order to advance their court application being filed within time.
27. Representative error has been accepted as an adequate explanation for delay in cases where the applicant gave clear instructions to the representative within the time limit to file the application and otherwise took any steps asked of them by the representative or followed up with the representative about the filing of the application: see, for example, Ryan v J-Corp Pty Ltd [2018] FCCA 2403; Robyn Nudd v Commonwealth Bank of Australia [2015] FWC 780 (albeit in the context of an unfair dismissal claim where an exceptional circumstances test applies); Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; and Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28.
28. Conversely, in Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361, the Full Bench of the FWC, applying the principles in Clark, distinguished the case before it from those cases in which the applicant had given clear instructions to their representative to lodge the application within time and had followed up to ensure the application was progressed.
29. In that case, the Full Bench made a point of rejecting the applicant’s submission that the decision of La Rosa v Motor One Group Pty Ltd (unreported, AIRC (FB), PR924583, 12 November 2002) stood for the proposition that an applicant would need to show “little” in order to satisfy the Commission that an applicant was blameless in the delay:
54. The Applicant relies on the following passage of La Rosa (at [24):
As is evident from Clark, little might be required to satisfy the Commission that the applicant was blameless in the delay.
55. We would observe that in the above passage the Full Bench was not setting out a general principle to the effect that little is required to satisfy the Commission that an applicant was blameless in the delay. As is clear from the use of the word might, the Full Bench was simply observing that depending on the circumstances “little might be required”.
…
58. The other cases relied on by the Applicant are also distinguishable on the facts. In each case the applicant had given instructions to their representative to lodge an application on their behalf.5 …
60. Further, the Applicant’s submission put is contrary to principle. An applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by.
30. On the face of it, there is difficulty in assessing whether the Applicant is “blameless” in the present case because the Applicant has not sought to adduce any direct evidence herself. Further, there is minimal detail about her conduct in Mr Felthouse’s affidavit. Importantly, however, it is apparent from his evidence that:
a. While he alleges that during the 14-day time limit, he “entered into correspondence with the respondent’s representatives in further attempts to reach a resolution between the parties”, this does not appear to be correct because:
i. as pointed out in the affidavit of Ian Bennett at [35(d)] and [24]-[26], the only correspondence between Adero Law and the Respondent’s representatives (SH Lawyers) during the 14-day time limit was correspondence sent by Mr Bennett of SH Lawyers to Adero law on 22 November 2019; and
ii. there is no evidence of any correspondence being initiated by the Applicant nor Adero Law with one another during the 14-day time limit.
b. Mr Felthouse notably does not say that he was instructed to file the claim in the Court during the 14-day time limit. He makes a more obscure statement that “[f]or the duration of the expired period, the applicant repeatedly expressed her intention to proceed with an application to the Federal Circuit Court” but does not say to whom this intention was expressed or what is meant by “the expired period”. However, when read in conjunction with the Applicant’s notice to dispute facts provided in response to the Respondent’s notice to admit facts discussed at paragraph 31 below, it appears that the “expired period” means the period after the 14-day time limit had expired.
c. Given that Mr Felthouse does state explicitly when the Applicant provided instructions at other times (i.e. to file the original claim in the FWC6 and to file the claim in the Court on 10 December 20197) it is tolerably clear that the Applicant did not give instructions to file the court application during the 14-day time limit.
d. It was Mr Felthouse who contacted the Applicant 14 days after the expiry of the 14-day limit to inform her of its expiry; it was not the result of the Applicant following up on whether the court application had been lodged. There is little evidence from which to infer that the Applicant took any steps to follow up the progress of her court application.
31. The Respondent served a notice to admit facts on the Applicant in an effort to obtain some information about the instructions she provided to her representative and the efforts she went to in order to see that her court application was filed within time. Without having any circumstantial detail at all from the Applicant, the Respondent was necessarily limited in the sort of facts it could seek confirmation about in that notice. Nonetheless, the Applicant’s notice to dispute facts served in response to the notice to admit facts confirms the following:
a. On 12 or 13 November 2019 the Applicant received the email from the Fair Work Commission attaching the certificate issued by Deputy President Cross under s 368 of the FW Act in which it was stated that a 14-day limit applied for filing proceedings in the Court.
b. Sometime between 12 November 2019 and the day Mr Felthouse ultimately filed proceedings in Court (10 December 2019) the Applicant made enquiries of Mr Felthouse/Adero Law “about the progress of her Claim” but did not make enquiries about the limitation period for commencing proceedings in Court. Read in conjunction with the evidence contained in the Felthouse Affidavit (as noted above at paragraph 30.b), it appears that the Applicant made these ‘progress enquiries’ in the period after the expiry of the 14-day time limit.
c. Between Deputy President Cross issuing the certificate on 12 November 2019 and the day Mr Felthouse ultimately filed proceedings in the Federal Circuit Court (10 December 2019), the Applicant was contactable and able to give instructions.
d. The Applicant provided instructions to Mr Felthouse to file the court application in the Court on 10 December 2019, and it was on that day that Mr Felthouse drafted, finalised and filed that application.
32. Accordingly, based on the circumstances arising from the Felthouse Affidavit and the Applicant’s response to the notice to admit facts, the following conclusions may be drawn about the conduct of the Applicant:
a. The Applicant did not provide instructions to her representative to file the application in the Court prior to the 14-day time limit expiring (and, in fact, she did not provide those instructions until 14 days later, on the day it was ultimately filed).
b. This is reflected in the fact that the Applicant’s representative did not prepare the application form for filing until 10 December 2019, being 14 days after the expiry of the 14-day time limit.
c. Within the 14-day time limit, the Applicant did not provide instructions to file the court application, check on whether the court application was being prepared or to check on whether the court application had been filed. This is despite the fact that the Applicant received the certificate from the FWC on which it was stated that she must file her court application within 14 calendar days of the issue of the certificate.
d. The Applicant’s enquiries “as to the progress of her Claim” only occurred after the expiry of the 14-day time limit or otherwise were not enough to instruct Adero Law to commence proceedings prior to 10 December 2019.
33. As such, it is tolerably clear that this is not a case in which the Applicant can be classified as “blameless” in the sense of having done everything she needed to do in order to advance her court application being filed within time.
(3) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application
34. The cases mentioned in relation to the principle above demonstrate that the Court must scrutinise closely the evidence proffered by an applicant for an extension of time to determine whether it passes muster on the question of an adequate explanation. In short, it is expected that the applicant will explain their conduct to the Court.
35. In this regard, it is extraordinary that the Applicant relies solely on the affidavit of Mr Felthouse.
36. It is significant that in her submissions, the Applicant refers to the decision of Heffernan J in Madigan v South Australian Museum Foundation Inc [2017] FCCA 2165 in support of her contention that representative error is responsible for her failure to observe the 14-day time limit. The difference between the evidence filed by the applicant in that case and the evidence filed by the Applicant in the present case is stark.
Not only did the applicant in Madigan provide detailed affidavit evidence about his circumstances and what steps he took at what time, the applicant’s representative deposed in detail about the time and content of conversations had with his client and the particular events transpiring in his office that resulted in him overlooking the time limit for lodging the application.
It was on the basis of that detailed evidence that Heffernan J was able to conclude (as emphasised in the Applicant’s Submissions at [12]) that:
I am satisfied that the applicant demonstrated through his conduct that he intended at all times to pursue this litigation and that he made reasonable efforts to ascertain that his solicitor had pursued his instructions diligently. … The explanation proffered by the applicant is adequate in this sense, it established that the applicant had always intended to pursue these proceedings and the failure to comply with the time limits arose because of circumstances outside his direct control.
I am satisfied that the applicant did everything that he was required to do in order to advance these proceedings.
39. In the present case, the Court really has no evidence at all about the Applicant’s conduct. That being the case, it is difficult to see how the Court could reach any state of satisfaction about the Applicant’s conduct, and yet according to the principles in Clark, this is a central consideration in determining whether representative error amounts to an adequate explanation.
40. Moreover, given the various authorities on representative error referred to in the Applicant’s short written submissions, it ought to have been obvious to the Applicant that the evidence filed in support of her application for an extension of time is insufficient to provide an adequate explanation for delay based on representative error.
41. Nonetheless, as set out in detail in the affidavit of Mr Bennett, the Respondent has gone to significant lengths to draw the Applicant’s attention to the inadequacy of the evidence several times prior to hearing in an effort to narrow or perhaps even resolve the issues in dispute in this application. See, in particular:
a. Mr Bennett’s voicemail and follow up email to Adero Law on 21 and 22 January 2020 pointed out the need for an adequate explanation from the Applicant as to the delay in filing her court application.
b. Mr Bennett’s email of 27 January 2020 setting out the inadequacies in the affidavit of Mr Felthouse and the short written submissions of the Applicant on the question of representative error being the reason for the delay.
c. Mr Bennett’s oral summary of the evidential problems with the Applicant’s allegation of representative error at the first return date before Judge Neville on 28 January 2020.
d. Mr Bennett’s letter to Adero Law of 26 May 2020 outlining the deficiencies in the position advanced by the Applicant to justify the late filing of her court application and inviting the Applicant to either discontinue the proceeding or provide further information to substantiate the alleged representative error
e. The notice to admit facts served on the Applicant in an attempt to fill some part of the evidential gap itself.
42. It is tolerably clear that the Applicant has not made out an adequate explanation for the delay based on representative error and this weighs overwhelmingly against the Court granting the application to extend the time.
43. Moreover, the circumstances described at paragraphs 40-41 above also demonstrate that the Applicant has acted unreasonably and support the Court exercising its discretion to award an order for costs in favour of the Respondent pursuant to s 570(2) of the FW Act.
Action taken by the Applicant to contest the termination (other than applying under the FW Act)
44. As pointed out at paragraph 32 above, the facts able to be gleaned from Mr Felthouse’s affidavit and the Applicant’s response to the Respondent’s notice to admit facts reveal that the Applicant did not engage in any steps during the 14-day time limit to press her court application to contest the termination.
45. The fact that the Applicant lodged a claim in the FWC and attended the conciliation in the FWC cannot be counted as ‘action taken’ for these purposes as they are jurisdictional conditions for filing a general protections proceeding in court (and are therefore necessarily present in every case).
Prejudice to the Respondent
46. As outlined in Clark, the mere absence of prejudice to a respondent is not a sufficient basis for the Court to be persuaded that an extension of time should be granted.
47. Moreover, as outlined in Mr Bennett’s affidavit, there has been prejudice to the Respondent arising from its assumption that the Applicant’s dispute had reached finality, such assumption being induced by the conduct of the Applicant and her representative. In this regard, it is notable that:
a. neither the Applicant nor her representative contacted the Respondent or its representative during the 14-day time limit to indicate that the dispute would be pressed;
b. this is despite the fact that the Respondent’s representative sent without prejudice correspondence to the Applicant’s representative during that period;
c. neither the Applicant nor her representative had the courtesy to contact the Respondent or its representative at the time of filing the application some 14 days late on 10 December 2019; and
d. it was not until January 2020 that either the Respondent or its representative were informed about the Applicant’s court application having been filed, just days before the first return date.
Substantive merits
48. It is generally unnecessary at this stage to fully investigate the merits of the substantive case, although obvious strengths or weaknesses may be a factor for or against extending time.
49. In the present case, it is extremely difficult for the Court to make any assessment of the merits as no evidence has been filed by the Applicant at all (let alone on the substantive issues).
50. However, it is notable that in the Respondent’s Form 8A filed in the FWC for the purposes of conciliation of the claim:
a. the Respondent presents considerable detail as to the circumstances of the Applicant’s work engagement with the Respondent and the reasons why it was brought to an end, which were unrelated to any alleged complaint the Applicant had made with respect to bullying. If the relevant decision-maker from the Respondent provides credible evidence of these reasons at trial, that will suffice to defeat the Applicant’s claim consistent with the principles expressed by the High Court in Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32; and
b. the Respondent foreshadows that it will dispute that the alleged complaint or enquiry alleged by the Applicant qualifies as a ‘workplace right’ within the meaning of s 341(1)(c)(i) or (ii) of the FW Act.
51. In the written submissions of the Applicant filed on 24 January 2020 in relation to the out of time commencement of these proceedings, it is asserted that the Applicant’s ‘other claims’ remain within time and it is suggested that the Applicant may have a ‘contractual claim for payment of notice…’. The Respondent notes:
a. any purported claim of this nature has not been raised in the initiating application which solely deals with the alleged adverse action as was brought in the FWC and no associated details of any purported additional claims have been provided to date, and
b. the Applicant was not engaged by the Respondent but through a third-party agency (Hayes) and there is no indication as to how any alleged payment of notice would attach to the Respondent.
52. The Respondent respectfully submits that the possibility of the Applicant bringing any other claims – without any specific details or attempts to ventilate these upon the commencement of these proceedings – would not warrant consideration in determining whether to extend the time limitation for the claim ultimately commenced by the Applicant albeit out of time.
Consideration of fairness as between the applicant and other persons in a like position
53. The Applicant has been legally represented from the inception of her claim in the FWC. She was in receipt of the certificate from the FWC which informed her directly of the 14-day time limit and was contactable and capable of giving instructions throughout the limitation period. According to her professional profile, she has extensive experience in change management and human resources processes.21
54. The Applicant is expected to comply with statutory time limits which the legislature has seen fit to impose and the circumstances described above indicate that she had every ability to do so. There is therefore no reason of fairness why the Applicant ought to be granted an extension of time that litigants in a similar position to her would not enjoy. Indeed, fairness considerations require that no extension of time be granted.
CONCLUSION
55. The weight of considerations is clearly in favour of the Court declining to exercise its discretion to grant the Applicant an extension of time.
56. While none of the considerations weigh in favour of the extension being granted, the lack of an adequate explanation for the delay and the failure to provide a proper evidential basis for the asserted representative error being such an explanation, is the most compelling reason why an extension of time should not be granted in this case.
57. The Respondent has taken careful steps to attempt to narrow the issues in dispute and to point out the inadequacies of the evidence proffered by the Applicant to provide her with an opportunity to discontinue voluntarily or to offer more information that would satisfy the Respondent that it ought to consent to her application for an extension of time. It has done so mindful of its obligations under the Legal Services Directions 2017, as explained in more detail in Mr Bennett’s affidavit. The Applicant has chosen not to respond or otherwise heed those efforts.
58. In the Respondent’s submission, the matter should now be determined on the papers (noting that the Respondent’s counsel is not available on 19 August 2020) with no more material to be filed by either party other than short written submissions in reply by the Applicant if she wishes.
59. The approach of the Applicant and her representative on the issue of the late filing of her application has put the Respondent and its representative to additional work and expense unnecessarily. For this reason, and for the reasons noted at paragraphs 41-43 above, regardless of the outcome of the Applicant’s application for extension of time, the Respondent submits that this is an appropriate case for the Court to exercise its discretion to award costs in favour the Respondent pursuant to s 570(2) of the FW Act whether ordered against the Applicant or her representative or both.
In addition to the Respondents’ written submissions, briefly stated, the following oral submissions were made in the course of the hearing on 19th August 2020.
The Respondent submitted that, by reference to Mr Felthouse’s Affidavit, it was insufficient simply to assert that a representative error had occurred. Such was, in the Respondent’s view, an insufficient explanation.
The Court inquired why an admission of fault was insufficient. Among other examples suggested included situations of a medical practitioner who, for any number of reasons (including negligence or ignorance), simply erroneously read, or otherwise omitted to read, certain crucial notes of a patient. Any number of questions could be asked as to how or why this occurred. There may be, in such situations, nothing more sophisticated an answer than “I simply missed that point or note.” Human error abounds. Whatever the level or degree of incredulity, acts of negligence occur in all walks of life every day. No one, including lawyers, are immune, or exempt, from error.
Graphic and grievous examples of almost inexplicable negligence or omissions from the ongoing pandemic can be observed. Two instances will suffice.
Without pre-empting any formal findings arising from the current inquiry, it is almost inconceivable that, so it would seem, there was little or no vetting of security guards who were appointed by Government Departments (in New South Wales and Victoria) to “guard” and or monitor persons who were quarantined in hotels. Various and potentially lethal breaches of quarantine restrictions have been reported. How and why relevant vetting and ongoing monitoring of the conduct of such guards did not occur seems to remain something of a mystery at this stage. Nonetheless, the omissions and the potentially catastrophic consequences of them seem to be a matter of record even if formal findings and the like remain ongoing.
A second example, which has been the subject of a now concluded formal inquiry, is the Walker Inquiry into the tragic situation arising from multiple failures regarding the cruise liner, the Ruby Princess.[7] Persistently and consistently, commentators and others regularly asked “how could such failures and apparently clear breaches of public health protocols” have occurred?
[7] Report of the Special Commission of Inquiry into the Ruby Princess (published 14th August 2020) by Commissioner Bret Walker SC (“the Walker Report”).
At par.1.14 of the Walker Report, the following was stated:
… it must be understood that the shortcomings in the public health response that are found in detail in the body of the Report are by no means to be regarded straightforwardly as causes of the suffering that has followed. There are several aspects to this cautionary note. First, as will be clear from the body of the Report, the Commission’s inquiry is not at all the same as a common law adjudication, say, of actionable negligence. The Commission is fulfilling an executive, not judicial, function. Second, hindsight is used throughout the Report in order best to inform as to what went wrong and how it might be avoided in future. That exercise has only limited resemblance, nowhere near complete, to a court’s investigation of sine qua non causation, and to a court’s prospective judgement of alleged failures to achieve a reasonable standard of care.
I note these two instances simply to highlight that even in a matter that had multiple layers of complexity, to attribute one or more specific errors in procedure, or to establish relevant “fault”, as well as the difficult issues relating to causation referred to, are regularly difficult to establish. It is also apt to note, again, that whatever the very large range of matters canvassed in the Walker Report, reduced to its most basic, there were failures of process (and other things) to varying degrees by individuals (including experts) and government departments. Further, as is usually the way, hindsight provides a curious and regularly harsh prism through which earlier actions are judged.
Although it was not spelt out, so to speak, in either written or oral submissions, the inclusion of the professional profiles of the three lawyers for the Applicant (obviously taken from the firm’s website) was seemingly intended to highlight the professed expertise of the Applicant’s lawyers in employment law.[8] Thus, presumably the argument would run, it makes it more unfathomable that such an obvious error as to miss a notified filing deadline could have occurred. And further (presumably), it would follow that there must be some other reason or cause, which has not been disclosed, for the omission. Not disclosing this [putative] missing part of the chain of error can only add to the weight of the Respondent’s resistance to any extension of time being granted to the Applicant.
[8] These profiles are part of the Exhibit to Mr Bennett’s Affidavit, at pp.114 – 127.
As an aside, and as indicated earlier in these reasons, the inclusion of the professional profiles (most particularly including photographs of the lawyers), in my view, was unwarranted. Although publicly available, it was rather intrusive. If this was a professional negligence case, such matters (sans the photographs) would very likely be relevant. Here, without making any finding, it rather hinted at almost a level of desperation of the lengths taken to resist what appears, at this stage, to be a relatively uncomplicated general protections Application regarding the Applicant’s termination of employment. One might also quake if personal profiles of lawyers, as here, is a harbinger of things to come, and that such “self-promotional evidence”, although used here in an accusatory way, will become de rigueur in future general protections Applications.
To return to the current matter, the Court continued to inquire of the Respondent to the effect that, whatever the conceded omission of the Applicant’s lawyers, if that omission is truly the answer – pure and simple – continuing to ask the question “how/why did this omission occur”, and getting the same answer – “it was something that was overlooked” – does not advance matters at all. If that is the explanation, that is the explanation.
Further, at an interlocutory hearing, where there is no cross examination and only the sworn evidence, via affidavit, from lawyers who act for the parties, the Court is in no position to make any assessment on matters that might otherwise apply at a contested hearing, such as credibility, inconsistency, and the like. There is no evidence (as opposed to arguments or contentions) that could or would require the Court to doubt the sworn evidence of lawyers who, as officers of the Court, have professional duties that are well known.
The Respondent noted that although the Application was filed on 10th December 2019, Mr Felthouse’s explanatory Affidavit was not served on the Respondent until 17th January 2020. It is not completely clear what point was being made here, or what could or should be drawn from it.
There ensued a series of questions from the Bench to the Respondent’s lawyer in the light of comments by McHugh J in Brisbane South Regional Health Authority v Taylor (noted in detail below, and noted also in the Respondent’s written submissions, at pars.46 – 47).[9]
[9] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
First, the Respondent properly conceded that no submission could be made that the delay (whether of 14, 10 or 9 days) could or would result in a diminution of available evidence.
Secondly, the Respondent also properly conceded, especially compared to some of the case law (noted below), that even a delay of 14 days was not a long period of time.
Thirdly, there was brief reference in the Respondent’s extensive submissions (prepared by Counsel) to the general principle that there should be finality as soon as possible in litigation, as well as that parties and witnesses should be able to get on with their lives.
Fourthly, the Court inquired what, if any, prejudice the Respondent could or would suffer if an extension of time for the Application was granted. To this, the Respondent simply referred the Court to its written submissions (at pars.46 – 47) that referred to the need for “finality” as effectively the only issue of possible “prejudice.” The Respondent fairly said that it could not otherwise take the issue of “prejudice” any further than as set out in the submissions.
Fifthly, in a similar vein, the Court inquired whether there was something akin (by analogy only) to a “David and Goliath” situation, with a former employee seeking to challenge the weight or might of the Department. Among other things, the Respondent said that it was bound by the Legal Services Directions regarding enforcement of time limitations with a view to ensuring efficient use of taxpayer’s funds.
Finally, the Respondent agreed that if an extension of time were to be granted, the matter should be referred to mediation.
Outline of principle
Accepting the general principles outlined in the submissions on behalf of the parties regarding extensions of time, in my view some other matters of principle require greater attention. At the outset, it is sufficient to note the following from the judgment of McHugh J (with whom Dawson J agreed) in Brisbane South Regional Health Authority v Taylor.[10]
[10] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Dawson J’s agreement with McHugh J is noted in 186 CLR at p.544.
First, McHugh J said (at p.552; internal citations omitted; emphasis added):
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.
Secondly, his Honour continued (at p.553):
In enacting limitation periods, legislatures have regard to all these rationales. 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. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision 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…
Thirdly, and critically, McHugh J said (at p.554):
… when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
Fourthly, in the same place, his Honour said (internal citations generally omitted):
… justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved. That the applicant had a good cause of action and was unaware of a "material fact of a decisive character relating to the right of action" does not alter the burden on the applicant to show that the justice of the case favours the grant of an extension of time….
The object of the discretion, to use the words of Dixon CJ [in Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473] in a similar context, "is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case." In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.
Finally, McHugh J said (at p.555; emphasis added):
Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice… When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur….
As recorded above, this decision was raised with the parties (the Respondent in particular at a little length) in the course of the hearing on 19th August 2020.
Three other decisions are also apposite to note. Curiously, given the expertise of the lawyers for both parties, there appears to be no reference to two of the following decisions (Comcare v A’Hearn and Mees v Kemp) in the parties’ submissions, both of which, notably, are judgments of the Full Court of the Federal Court of Australia. The first of these Full Court judgments has been regularly and consistently cited in a significant number of later decisions, all of which deal with consideration of extensions of time in circumstances of “delay.”
In Comcare v A’Hearn, the Full Court (Black CJ, Gray and Burchett JJ) said that [clearly negligent] delay by experienced lawyers (in that case, the delay was 17 months) is a consideration which may relevantly be taken into account in favour of the Application, and “may constitute an explanation sufficient to warrant the granting of an extension of time.”[11]
[11] Comcare v A’Hearn (1993) 45 FCR 441 at p.443.
The Court went on to say (at p.444):
We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition…
The Court granted the extension sought.
Secondly, in Clark v Ringwood Private Hospital, the Full Bench of the Australian Industrial Relations Commission (“the Commission”) dealt with an appeal regarding a first instance denial of an Application for an extension of time.[12] Relying upon the Full Court decision in Comcare v A’Hearn, among other authorities, the Full Bench said that error by an Applicant’s representatives was only “one of a number of factors to be considered in deciding whether or not an out of time Application should be accepted …”[13]
[12] Clark v Ringwood Private Hospital (1997) 74 IR 413.
[13] Clark v Ringwood Private Hospital 74 IR 413 especially at pp.418 – 420.
The Commission also referred, on the one hand, to delay attributed to representatives and an Applicant who was “blameless”, and on the other hand, to a situation where the Applicant’s conduct was relevant or culpable in some relevant way.
Thirdly, in Mees v Kemp, the Full Court (French, Merkel and Finkelstein JJ) stated, at [32]:[14]
[14] Mees v Kemp (2005) 141 FCR 385.
His Honour considered whether the appellant should be granted an extension of time. He referred to the principles governing applications for extensions of time set out in the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and in particular the following propositions:
1. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper to do so. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is fair and equitable in the circumstances to extend time.
2. Action taken by the applicant, other than making an application for review, is relevant to determining whether an acceptable explanation for the delay has been furnished.
3. Prejudice to the respondent including prejudice in defending proceedings occasioned by delay is a material factor militating against the grant of an extension.
4. The mere absence of prejudice is not enough to justify the grant of an extension. Public considerations often intrude.
5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court’s discretion.
His Honour referred to other cases in which the principles have been applied and also to their qualification by the Full Court in Comcare v A’Hearn (1993) 45 FCR 441. There the Court referred to the proposition that it is a pre-condition for success in an application to extend time that an acceptable explanation for the delay must be given. The Court said (at 444):
‘Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition.’
In the result, on the facts of the matter, including a delay of some 12 months or thereabouts in bringing the Application, the Full Court refused the extension of time Application.
Two other matters require attention.
The first relates to the Applicant’s reference to the possible/likely addition of other aspects of the Applicant’s claim to be made. In this regard I simply note, but do not need to discuss, the decision of Dodds-Streeton J in Shea v TruEnergy Services Pty Ltd (No.1), where her Honour confirmed (at [70] and [71]) that where a general protections Application has been filed, the Court may validly include in the Application “new, additional and different claims from those in the [Fair Work Application] provided that the essential basis of the dispute in the [Fair Work] Application remained.”[15]
[15] Shea v TruEnergy Services Pty Ltd (No.1) (2012) 204 FCR 456.
The second matter of significance are the Legal Services Directions 2017 (“the Directions”).
The Respondent relies significantly, and seemingly exclusively, on Clause 8 of the Directions, which refers to “reliance upon limitation periods.” Clauses 8.1 and 8.2 are in the following terms:
8.1 A defence based on the expiry of an applicable limitation period is to be pleaded by a non‑corporate Commonwealth entity, unless approval not to do so is given by the Attorney‑General. Approval will normally be given only in exceptional circumstances, for example, where the Commonwealth has through its own conduct contributed to the delay in the plaintiff bringing the claim.
8.2 An application for an extension of a limitation period is to be opposed by the entity unless approval to consent to the application is given by the Attorney‑General. Approval will normally be given only in exceptional circumstances which would justify not pleading a limitation defence or where it is expected that the application will succeed (in which case not consenting would be likely to result in unnecessary costs and delay).
However, and unfortunately, there are other parts to the Directions that seem not to have received much attention in these proceedings. In my view, they should have. For example, Appendix B to these Directions contains the details that are meant to govern “the Commonwealth’s obligation to act as a model litigant.” (“the Model Litigant Rules” or “MLR”).
At the outset, I do not suggest that the Respondent, and certainly not its legal representatives, have acted other than with scrupulous professional attention. However, to speak somewhat colloquially, it seems to me that thus far there has been too much attention or focus on the forest rather than the individual tree (or vice versa)! Singular focus upon, and reference to, Clause 8 of the Directions, and little or no attention to the provisions in Appendix B of the same Directions, has ultimately led to the costly stand-off between the parties in circumstances where, in my view, a quick resolution of the procedural impasse was both eminently sensible, commercially appropriate, and legally and prudentially justified.
For example, Clause 2(a) of the MLR states: The obligation to act as a model litigant requires that the Commonwealth and Commonwealth agencies deal “with claims promptly and not causing unnecessary delay in the handling of claims and litigation”.
Clauses 2(d), (e), (f) and (g) warrant careful attention. They provide that the Commonwealth and its agencies act by …
(d) endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate
(e) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, …
(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim
(g) not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement…
Note 3 to the Directions further states:
The obligation to act as a model litigant may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations.
Simply for completeness, I note that during the hearing I inquired whether considerations of the “scarce public resources” of the Court, as noted in AON Risk Services Limited v Australian National University (“AON v ANU”), have any relevance or currency in the current Application before the Court.[16] Suffice to say that the comments by the High Court in that signal case received little attention during the hearing. While this was understandable – up to a point – in the circumstances, in my view the High Court’s comments in AON v ANU always warrant close attention. This is especially so in interlocutory proceedings, as they were in AON v ANU, and as they are here. It would appear, I do not put it any higher, that the considerations in this seminal High Court case did not receive much or any attention here, which is rather surprising given the lawyers involved. It should have been properly considered in the weighing up of the various threads of procedural and other matters on display here.
[16] AON Risk Services Limited v Australian National University (2009) 239 CLR 175 especially at [5] and [23] – [30].
Consideration & disposition
In addition to preferring, and in turn accepting, the submissions of the Applicant, the following matters, in my view, require an extension of time to be granted to the Applicant. Given what has already been said throughout these reasons, it is sufficient here to summarise the primary bases why the Court has come to this conclusion. The particular reference points of principle, noted earlier, are the comments by McHugh J in Brisbane South Regional Health Authority v Taylor, and the respective comments by the Full Court decisions in Comcare v A’Hearn and in Mees v Kemp.
By any measure, which was generally accepted by the Respondent, the delay of 14 days is extremely modest. It pales next to the delay, also by long experienced legal representatives, in Comcare v A’Hearn, of seventeen months. The delay in that case was variously described as constituting “gross inaction” and being “inexcusable”. Yet an extension of time was permitted in that case. Each case, of course, must turn on its own facts.
Such a modest, if not very small delay – openly admitted – scarcely could have provided a sufficiently large window for the Respondent to have taken such action as it may have done that was not curable in any number of ways. Moreover, as already recorded, properly, the Respondent indicated that the only possible prejudice was the expectation that the litigation had finished. Otherwise, especially given the significantly different resources available to each of the parties – an individual, former employee compared to a Commonwealth Department – it is very difficult to see how the Respondent could relevantly be disadvantaged by the extension of time.
However curious (other descriptions are apposite) the explanation might be on the part of Mr Felthouse, namely a sin of professional omission, in my view, absent any other independent evidence to challenge its veracity and accuracy, the duly affirmed evidence of a lawyer (an officer of the Court) must be accepted, particularly in interlocutory proceedings. This is so notwithstanding the extensive pursuit by the Respondent that there must be some other explanation than as given by Mr Felthouse.
In his Affidavit, filed 24th January 2020, Mr Felthouse confirmed that during what he described as the “expired period”, that is between 26th November and 9th December 2019, he pursued his processes of “evidence gathering” (par.10). He recorded (pars.11 and 13 – 14) that during this time (a) the Applicant repeatedly “expressed her intention to proceed with an Application to [this] Court”, (b) that he advised the Applicant on 10th December 2019 of the expiry of the 14 day period to file an Application in this Court, and (c) on the same date and during the same conversation with the Applicant, she gave instructions to file an Application in this Court that included an interim Order for an extension of time.
True it is that Mr Felthouse does not explain how or why (par.9) he “was not cognisant of the expired 14day time limit of the [FW] Certificate.” Nor does he explain, at par.12, how he “became aware of the 14-day limit for the filing of the Application …” In relation to the latter, it may simply have been that he re-read the Certificate issued by the Fair Work Commission and noticed the “Important Note” on its face. In my view, such lack of information concerning how or why Mr Felthouse was not cognisant of the 14 day time limit, really does not assist in the present circumstances. In a different kind of proceedings, it may be relevant to things like the consideration of contributory negligence, or the assessment of damages, or issues relating to causation. Given the exceedingly short period of the delay here – on any view – I have significant difficulty in seeing what such information (if there be anything other than a straight-forward omission, and perhaps lack of supervision by more experienced lawyers in the practice) can add to the matter at hand.
Further, given the limited time involved, and the advertised expertise of her lawyers, it is more than reasonable that the Applicant relied upon their expertise, including for filing an Application within time. Brevity in report of the limited conversations between the Applicant and her lawyer (as recounted in Mr Felthouse’s Affidavit) of itself is not, and in my view, should not, be taken to suggest that something perhaps sinister is afoot, or even that the Applicant herself was relevantly implicated in the omission or apparent negligence of her lawyers in missing a filing deadline.
As to matters of proportionality and “fairness”, in my view, given the immense disparity in resources available to the parties, and the very short delay involved, together with the significant lack of prejudice to the Respondent, all such considerations weigh strongly in granting the extension of time sought by the Applicant. The candid and ready admission by the Applicant’s lawyers should also properly be taken into account. Their omission should not, in all the circumstances, be visited upon the Applicant herself.
A final matter to record (noted in the Applicant’s Submissions in Reply, filed 17th August 2020), is that the Applicant’s solicitor offered to pay the Respondent’s costs of the extension of time Application. Contrary to the principles in the MLR noted earlier in these reasons, this costs offer and the procedure proposed, was rejected by the Respondent. In my view, it should have been accepted.
In addition to the granting of the extension of time, there will be an agreed direction that the parties attend mediation on a date and time to be advised by the Registry of the Court.
Finally, because of the failure by anyone, including the Respondent’s lawyers, to refer to a number of prominent cases, notably Comcare v A’Hearn and Mees v Kemp, which would hopefully have brought a more irenic, prudential resolution to the extension of time Application much earlier in time, thereby saving many resources (including those of the Court), on the Court’s own motion, I reserve the Applicant’s costs of this Application. I do so cognisant of the principles discussed earlier in these reasons from cases like Darlaston v Parker regarding costs Orders in this jurisdiction under s.570 of the FW Act and its antecedents.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge W J Neville
Associate:
Date: 14th October 2020
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