Owen v Cudeco Ltd - [2013] FCCA 1827

FEDERAL CIRCUIT COURT OF AUSTRALIA

OWEN v CUDECO LTD

[2013] FCCA 1827

Catchwords:
PRACTICE AND PROCEDURE – Refusal of an extension of time to commence proceedings under the Fair Work Act 2009 (Cth).

Legislation:

Fair Work Act 2009 (Cth), s.371

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Owen v NRW Pty Ltd T/A NRW Civil and Mining [2012] FWA 9188

Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28

Applicant:

TRISTAN OWEN

Respondent:

CUDECO LTD

File Number:

SYG 1511 of 2013

Judgment of:

Judge Driver

Hearing date:

7 November 2013

Delivered at:

Sydney

Delivered on:

7 November 2013

REPRESENTATION

Solicitors for the Applicant:

Mr G Sivaraman

Maurice Blackburn

Counsel for the Respondent:

Mr M P Williams

Solicitors for the Respondent:

Taylor's Solicitors

INTERLOCUTORY ORDERS

The application for an extension of time for the filing of the principal application is refused.
The principal application is dismissed as incompetent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1511 of 2013

TRISTAN OWEN

Applicant

And

CUDECO LTD

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a request for an extension of time for the filing of an application under the Fair Work Act 2009 (Cth) (Fair Work Act). The background facts and circumstances and the relevant principles in relation to the request are conveniently set out in written submissions filed in court today by leave on behalf of the respondent, Cudeco Limited, which I adopt, with any necessary amendments.
Mr Owen seeks an extension of time for the filing of the substantive application purportedly filed on 3 July 2013, pursuant to s.371 of the Fair Work Act.
A section 369 certificate was issued by Commissioner Booth on 29 May 2013 making the relevant date for the filing of the application 12 June 2013, pursuant to s.371.
On 25 July 2013 this Court ordered that the matter be listed for directions on 23 August 2013. On that date the matter was further adjourned until 27 September 2013 with orders for the applicant to file and serve any amended application with full particulars of the claims under the Fair Work Act. Further, if no amended application were made, that a statement of particulars of alleged breaches concerning this application was to be provided to the respondent by 13 September 2013. No such material has been provided.
The matter returned to this Court on 27 September 2013 and the present application for an extension of time was listed for 7 November 2013 for hearing with any affidavit material to be relied upon by the applicant to be filed and served by 1 November 2013. No affidavit was filed or served by that date. Leave was sought and granted for the filing of a late affidavit by Mr Owen.

Relevant provisions

The relevant provisions pertaining to the application are contained in the Fair Work Act. Section 371 provides:
(1) A person who is entitled to apply under section 365 to the FWC for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) the FWC has issued a certificate under section 369 in relation to the dispute; or
(b) the general protections court application includes an application for an interim injunction.
Time for application
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
In Brodie-Hanns v MTV Publishing Ltd[1], the Industrial Relations Court of Australia outlined the principles which relate to the exercise of the discretion. Whilst the list is not exhaustive nor binding, it is instructive of the relevant principles to be applied.[2] Those principles 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 Fair Work 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.
[1] (1995) 67 IR 298
[2] see Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28
Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
The extension of time request is supported by the affidavit of Tristan Owen made yesterday and filed in court by leave today. That leave was opposed, noting that I had given directions on 27 September that any affidavit upon which Mr Owen wished to rely in support of his extension of time request was to be filed no later than 1 November 2013. I gave leave for the affidavit to be filed in court and received it subject to cross-examination, and Mr Owen was cross-examined on the affidavit.
I received, without cross-examination, the affidavit of Peter Robert Hutchison, filed on 4 November 2013 on behalf of the respondent. A number of documents are annexed to that affidavit.
The respondent opposes the extension of time in an amended response filed on 4 November 2013. The respondent also seeks its costs of the application.
I accept that the principles set out by Marshall J in Brodie-Hanns provide guidance to the Court to which the Court should pay attention.
His Honour noted first that the Court needed to be positively satisfied that the prescribed period should be extended. The time limit that is specified by Parliament should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend the time limit. The circumstances in this matter are that Mr Owen had taken action in the Fair Work Commission to contest the termination of his employment, which he regarded as unlawful because of an absence due to illness.
Mr Owen was advised by email of the issuing of a certificate by the Commission, and acknowledged receipt of that email. On the same day he informed the respondent of his intention to pursue the matter further. Mr Owen is not a stranger to the jurisdiction. I was taken to earlier proceedings in this Court also involving an alleged unlawful termination instituted by Mr Owen[3]. Those proceedings were ultimately dismissed on a procedural basis, as were other proceedings instituted by Mr Owen in the Fair Work Commission against a different employer[4].
[3] Owen v Team Labour Services Qld trading as National Mine Maintenance Services (BRG512/2012)
[4] Owen v NRW Pty Ltd T/A NRW Civil and Mining [2012] FWA 9188
Mr Owen asserts that he obtained the form of application and supporting form 2 necessary to file his application in the Court on 12 June 2013 and faxed it to the registry the following day. That is only one day outside the time period. However, the Court file discloses that the form 2 was faxed to the registry on 19 June 2013; that is a week later. It appears that on receipt of the documents the registry contacted Mr Owen and advised him to provide material in support of an extension of time noting that the documentation had been received outside the 14 day limitation period.
Mr Owen supplied that additional material and the application was file stamped in the registry on 3 July 2013. In the circumstances, I accept that the period of delay involved was only a short one. Mr Owen’s explanation for that delay is set out in particular at [18] and [19] of his affidavit. Essentially Mr Owen says that his time was taken up with family and work commitments, which involved him travelling about 10 hours between Muswellbrook, where he lives, and Blighty in south-western New South Wales, where his family is located.
I accept that Mr Owen was, in the circumstances he advanced, obliged to supply support to his family as well as attempt to meet his work commitments, and that these were a burden for him. I remain, however, concerned that although he knew or should have known the need for timely action to institute these proceedings, his application was still out of time. That concern is magnified by Mr Owen’s inability to comply with order 2 I made on 27 September 2013.
Mr Owen gave evidence that he has had difficulty in obtaining legal representation. He has apparently consulted some six legal practitioners or other sources of advice. He was represented at the hearing today. Although the explanation for Mr Owen’s delay in coming to court is not particularly persuasive, the delay is a short one and if I had formed the view that Mr Owen has a prima facie case raising a real issue meriting a final hearing I would be minded to grant him the extension of time he seeks. However, I am not so persuaded.
Mr Owen claims that he was unlawfully dismissed from his employment on 1 November 2012 when he was unwell and on sick leave. On Mr Owen’s account he has suffered from a recurrent golden staph infection problem for about 14 years. He gave evidence that he suffered what in ordinary circumstances would be only a superficial injury at work and did not make any workers compensation claim. He was, however, concerned that the injury might cause a recurrence of the golden staph infection and, indeed, according to him, that is what occurred. His evidence about that is somewhat problematic. He says that after the injury, some time in October 2012, he took time off to see his regular doctor in Mackay and then on 31 October 2013 after work he felt unwell. He says that on the following morning, 1 November, he felt feverish and pain in his leg, which indicated to him a recurrence of the golden staph infection. He used what he describes as some unused medication from a previous staph episode. In other words he self-medicated based on his own diagnosis.
Under cross-examination, however, including in response to questions from me, Mr Owen said that the medication he used had been prescribed specifically for him by his doctor in Mackay when he consulted the doctor in October. He also said that there had been a flare-up of the golden staph infection at that time. In those circumstances there is an awkwardness in [7] to [9] of Mr Owen’s affidavit.
Mr Owen was not able to tell me what the medication was that had been prescribed, although he was able to say that it was an antibiotic. He also acknowledged that it was generally unwise to consume alcohol while taking antibiotics. However, on his own account he had been drinking, albeit moderately, on 31 October 2013 after work before he felt unwell.
Mr Hutchison’s evidence, which I accept and which was put to Mr Owen in cross-examination, was that Mr Owen had presented problems for his employer due to his alcohol consumption. On 14 July 2012 Mr Owen was tested by his employer and recorded a blood alcohol reading of .061. On 6 October 2012 he recorded a blood alcohol reading of .013.
I accept that Cudeco has a zero alcohol tolerance policy, bearing in mind that its employees work in potentially dangerous situations with heavy equipment. Mr Owen was issued with warnings because of his alcohol consumption, and those warnings were appropriate in the circumstances. Cudeco, through Mr Hutchison, maintains that Mr Owen was dismissed from his employment during the probationary period of that employment for reasons not specified in writing, but because of unsatisfactory performance, the failure to meet quality standards and level of skill, a failure to adhere to the employer’s drug and alcohol policy and a failure to adhere to the use and operation of the employer’s motor vehicle policy.
Those are, no doubt, matters that could be tested at a final hearing. However, Mr Owen has the difficulty that he has no medical evidence of his illness or injury at the relevant time. The simple fact is that he did not seek medical attention on 1 November 2012. It is now impossible for him to obtain any medical evidence that would be useful in determining whether he was, in fact, unwell at that time. He may be able to obtain evidence from others at the pub he attended the night before that he referred to being unwell, but even if that was so the reason why he was unwell would be a matter of speculation.
I also take into account that I did not find Mr Owen an impressive witness under cross-examination today. I formed a view that if it proceeded Mr Owen’s application would be likely to fail on the evidence.
In those circumstances, I have decided that I should decline the request for an extension of time and accordingly dismiss the application.
Cudeco seeks its costs. The general principle is that parties in this jurisdiction bear their own costs. I am not persuaded that proceedings were improperly instituted. Mr Owen has a grievance in which I think he believes genuinely, but which he is most unlikely to be able to substantiate by evidence. He has had difficulties in pursuing past and the present proceedings and in complying with court orders. However, his actions in instituting the proceedings and in pursuing them to this point have not been such as to warrant a costs order.
I will, therefore, order that the extension of time request be refused and that the application be dismissed as incompetent.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 12 November 2013