Nguyen v TAL Services Limited
[2025] FedCFamC2G 1046
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v TAL Services Limited [2025] FedCFamC2G 1046
File number: MLG 4022 of 2025 Judgment of: JUDGE GOSTENCNIK Date of judgment: 20 June 2025 Catchwords: INDUSTRIAL LAW – application for an extension of time to bring a claim under s 370 of the Fair Work Act 2009 (Cth) – multiple requests for adjournment – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed Legislation: Fair Work Act 2009 (Cth) s 368
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 8 Date of last submission/s: 6 May 2025 Date of hearing: 20 June 2025 Place: Melbourne Counsel for the Applicant: No appearance by or on behalf of the applicant Counsel for the Respondent: Mr A Gleeson Solicitors for the Respondent: Minter Ellison ORDERS
MLG 4022 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VANESSA VAN THU TUYET NGUYEN
Applicant
AND: TAL SERVICES LIMITED (ACN 050 109 450)
Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
1.The application filed by the applicant on 26 November 2024 is dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)Judge Gostencnik
The applicant applied to the Court for a remedy in which she alleges that her dismissal by the respondent occurred in contravention of the General Protections provisions of the Fair Work Act 2009 (Cth) (Act). That application was made on 26 November 2024. The Fair Work Commission (Commission) had earlier conducted a conciliation conference as it was required to do under the Act, and on 8 November 2024 Deputy President Colman issued a certificate under s 368 of the Act certifying that all reasonable attempts to resolve the dispute had been unsuccessful. The consequence of the issue of that certificate is that the applicant had 14 days within which to apply to a Court with jurisdiction to prosecute her claim, or alternatively to reach an agreement within that time with the respondent for the parties to ask the Commission to conduct a consent arbitration.
The applicant opted for the former course of action, but that application was made several days after the 14-day period for which the Act makes provision elapsed. Consequently, to prosecute her claim before this Court, the applicant must first persuade the Court to extend the time within which the application may be made.
The matter was first listed for a return directions hearing before Registrar Wilson on 4 February 2025. According to the order made by the Registrar, the applicant did not appear at that hearing. Directions or orders were made for the further conduct of the matter and ultimately the matter was assigned to my docket and the interlocutory application to extend time was listed for a hearing for 7 May 2025. The applicant sought an adjournment of the 7 May 2025 hearing on 5 May 2025, and on 6 May 2025 the applicant provided correspondence from a doctor supporting her application for adjournment, indicating that she needed a six-month adjournment. The basis upon which that assessment was made is not clear, but in any event the adjournment application was granted on the following day, although for a shorter period than was sought by the applicant.
The applicant also filed on the same day as her adjournment request, that is, 6 May 2025, an outline of submissions addressing matters that may be relevant to assessing whether an extension of time should be granted. On 7 May 2025 I made orders vacating the interlocutory hearing listed for that day, and listed the matter for a case management conference on 6 June 2025. On 5 June 2025, the applicant made a further request for an adjournment, and on 6 June 2025 the applicant provided a further medical certificate in support of her application. The applicant was advised then that she should attend the hearing, but did not do so. In any event, the hearing convened and I decided on that occasion to grant an adjournment, but made orders that the interlocutory application for an extension of time be listed for hearing on 20 June 2025 at 2:00 pm. To facilitate the hearing, I also directed that the proceeding would be heard by Microsoft Teams, thus making it easier for the applicant to attend given her alleged medical condition.
On 20 June 2025, at about 1:20 pm, my chambers received correspondence from the applicant to the effect that she was unable to attend, and that her doctor would not attend because the fee he would charge for his appearance was something that the applicant was not able to meet. I had indicated in my orders of 6 June 2025 that any further adjournment application by the applicant based on medical grounds would be dealt with at the commencement of the hearing on 20 June 2025, and that the medical practitioner verifying that the applicant cannot participate in the proceeding will need to be available to give evidence at the hearing about the applicant's condition.
There has been no medical evidence provided, and the medical practitioner has not joined the hearing. I must say I am not even certain whether the medical practitioner has been made aware of the hearing, but in any event, my associate advised the applicant in response to her email on the day of the hearing that she would need to attend the hearing by Microsoft Teams at 2:00 pm on 20 June 2025, and at that hearing make any application for an adjournment. Despite the earlier advice set out in the orders, and despite the subsequent advice from my associate that she will need to attend to make the application, the applicant has not attended.
The respondent has today made an oral application that the interlocutory application for an extension of time be dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). In the circumstances described earlier, and given the history of this matter, the repeated failure of the applicant to attend, and to provide any sufficient basis upon which an adjournment application might properly be considered, I am persuaded that it is appropriate that I exercise my discretion to dismiss the application.
On that basis, I will order that the application be dismissed, and I note that the applicant can apply to have her application reinstated pursuant to r 17.05(2)(a) of the Rules. The order will therefore be that the application lodged by the applicant on 26 November 2024 is dismissed pursuant to r 13.06(1)(c) of the Rules.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 7 July 2025
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