Newton v Gallawah Pty Ltd
[2023] FedCFamC2G 747
•21 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Newton v Gallawah Pty Ltd [2023] FedCFamC2G 747
File numbers: MLG 974 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 21 August 2023 Catchwords: INDUSTRIAL LAW – Application pursuant to s. 370(a)(ii) of the Fair Work Act 2009 (Cth) for extension of time within which to make a general protections court application – whether Applicant has reasonable explanation for delay – representative error – extension of time granted Legislation: Fair Work Act 2009 (Cth) ss. 368, 370 Cases cited: Brisbane South Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Clarke v Service to Youth Council Inc [2013] FCA 1018
Comcare v A’Hearn (1993) 45 FCR 441
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of last submissions: 18 August 2023 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicant: Saines Legal Solicitor for the Respondent: McCracken & McCracken Lawyers ORDERS
MLG 974 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LEAH NEWTON
Applicant
AND: GALLAWAH PTY LTD
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
21 AUGUST 2023
THE COURT ORDERS THAT:
1.An extension of time be granted for the filing of the application and the matter proceed as if it was filed within time.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
The Applicant Ms Leah Newton (Ms Newton) seeks an extension of time pursuant to s. 370(a)(ii) of the Fair Work Act 2009 (Cth) to make a general protections court application in relation to an alleged contravention or contraventions of Part 3.1 of the Act. The Respondent is her former employer, Gallawah Pty Ltd. (Gallawah). Ms Newton’s court application was made on 2 June 2023, some 20 days after the 14 day period set out in s. 370(a)(ii) of the Act. The evidence on this extension of time application is that Ms Newton’s court application was late because of her representative’s inexperience and unfamiliarity with the Court’s eLodgment system.
In circumstances in which the delay is short, the delay is due to the inexperience of her representative and Gallawah claims no prejudice because of the delay, it is in the interests of justice to extend time. Except to note that on the face of the material currently before the Court the Applicant may have an arguable claim, it is not possible to form any more definitive view (one way or the other) as to its merits. As to the extension of time, this is a case in which any representative error ought not to be visited upon Ms Newton: Comcare v A’Hearn (1993) 45 FCR 441, 443. My reasons are below.
Material
A Registrar of the Court ordered that the application for an extension of time be determined on the papers.
Ms Newton relies on an outline of submissions, her own affidavit made on 18 July 2023 and an affidavit of Mr William Parry (Mr Parry) also made on 18 July 2023. Ms Newton is a union member and Mr Parry is the union official who, at the relevant time, represented Ms Newton. I treat both affidavits as read on the application.
After Ms Newton filed this material, by a letter of its lawyers to the Court dated 2 August 2023, Gallawah wrote that it did not intend to make a submission and “does not consent nor oppose the applicant’s application for an extension, and awaits the Court’s decision based upon the material filed.”
FACTS
In her substantive application, Ms Newton sets out that she was employed as a Social and Community Services Coordinator with Gallawah from 15 February 2022 until 3 January 2023. She alleges (among other matters) that she made a complaint to a director of Gallawah that she was being paid at a rate less than the minimum prescribed award rate and that a reason for her dismissal on 3 January 2023 was the making of that complaint. The determination of the merits of her claim would be a matter for evidence at any trial.
On 28 April 2023 the Fair Work Commission (FWC) issued a certificate under s. 368(3)(a) in relation to the dispute (Certificate). The 14-day deadline for the making of a general protections court application pursuant to s. 370(a)(ii) was 12 May 2023.
Ms Newton’s affidavit
In an affidavit made in support of her application for an extension of time, Ms Newton deposes that she was a member of the Nurses Professional Association of Victoria (NPAV). Mr Parry was the NPAV officer assigned to assist her in her case. After the FWC issued the Certificate, and before 12 May 2023, she instructed Mr Parry to file necessary court documents for her general protections court application. On 12 May 2023 Mr Parry emailed her that he had lodged the court documents. Because of Mr Parry’s email to her, Ms Newton believed her application had been lodged on 12 May 2023, within time.
Mr Parry’s affidavit
In his affidavit, Mr Parry corroborates that Ms Newton instructed him to file her general protections court application. On 12 May 2023 he attempted to file Ms Newton’s application using the Court’s eLodgement portal. He exhibits a Court response email dated 12 May 2023. The Court’s email stated that “Your lodgement has been marked Pending.” It was sent to an email address at the NPAV that Mr Parry did not personally monitor. He did not see that email. On 29 May 2023, Ms Newton telephoned Mr Parry which reminded him that he needed to check for a court-stamped copy of Ms Newton’s application. From 12 May 2023 until 29 May 2023, when Ms Newton’s phone call prompted him to check the Court’s eLodgement portal, Mr Parry presumed that the application had been successfully lodged. Only on checking the eLodgement portal he learned that the “lodgement must be rejected as no fee has been raised on it.”
Between 29 May 2023 and 1 June 2023 Mr Parry made various communications to the Court’s registry as he endeavoured to remedy issues with the filing of Ms Newton’s application.
By an email dated 1 June 2023 the Court notified Mr Parry that a further attempt to lodge the documents was marked "pending” because the application was now out of time. The explanation Mr Parry duly offered was:
this previous application was rejected due to the filing fee not being raised at elodgement, primarily due to inexperience and error of the applicant’s representative in prompting fee payment […]
On 2 June 2023 Mr Parry received a court email that the application had been “accepted and processed.”
ANALYSIS
Section 370 of the Act provides that the FWC’s certificate is a jurisdictional prerequisite to the commencement of a general protections court application. Further, s. 370(a)(ii) provides that the general protections court application must be 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.” As McHugh J noted in Brisbane South Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, at 55 “the limitation period is the general rule; an extension provision is the exception to it.”
The Court’s discretion is unfettered by express statutory words but must be exercised judicially (in the interests of justice). Note 2 to the subsection refers to a decision in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 as to “a similarly worded provision of the Industrial Relations Act 1988” which may bear on the discretion to extend time. As White J held in Clarke v. Service to Youth Council [2013] FCA 1018, at [5], it is sufficient to treat the statutory note as providing a reference “to the kinds” of considerations which may be relevant in an extension of time application. In considering whether to extend time, I have had regard to the kinds of matters Marshall J identified in Brodie-Hanns (299 -300).
In this case, the justice of the case warrants an extension of the time. The evidence is that Ms Newton instructed her representative to lodge the application within time. Her representative sought to act in accordance with those instructions but the application was not lodged because of administrative error or inexperience. At the commencement of these reasons, I noted the decision in A’Hearn which is authority for the proposition that, ordinarily, the mistake of a representative ought not to be visited upon an applicant.
On the basis of Mr Parry’s email to her dated 12 May 2023, Ms Newton understood that her application had been filed with the court within time. She diligently followed up Mr Parry on 29 May 2023 and her phone call on that day acted as the catalyst for Mr Parry uncovering his administrative error. The error is an error of the representative, not Ms Newton. The delay in short. Gallawah points to no prejudice. As to the merits, in my view, this is not a case in which any assessment of the merits can be a “significant consideration”: Clarke, [34]. I adopt a similar approach to that adopted by White J Clarke at [34]: “I can do no more than accept that the applicant may have an arguable claim and that, if the extension of time is not granted, she will not be able to pursue that claim.”
In all the circumstances, I will make an order extending the time for making the application. The Court will hear from the parties as to directions.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 21 August 2023
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