Ramadge v Flitner & Company Pty Ltd
[2023] FedCFamC2G 1193
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ramadge v Flitner & Company Pty Ltd [2023] FedCFamC2G 1193
File number(s): MLG 989 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 14 December 2023 Catchwords: INDUSTRIAL LAW – General Protections – application filed out of time – application for extension of time – matters relevant to exercise of Court’s discretion – extension of time refused Legislation: Fair Work Act 2009 (Cth) Pt 3-1, ss 365, 368, 370, 370(a)(ii)
Legal Profession Uniform Law Application Act 2014 (Vic) s 334 of Sch 1
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 2.05, 2.06, 2.08(2), 30.04
Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 26 October 2023 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the Respondent: Did not participate ORDERS
MLG 989 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LISA RAMADGE
Applicant
AND: FLITNER & COMPANY PTY LTD
Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s Application filed 5 June 2023 be dismissed.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application for an extension of time in which to file an Application alleging dismissal in contravention of various general protection provisions of the Fair Work Act 2009 (Cth) (Act).
For the reasons that follow, I decline to grant the extension of time sought.
CONTEXT
In the substantive Application, the applicant contends that she was employed by the respondent from 23 April 2021 until she was dismissed on 16 March 2023. The applicant contends that the respondent dismissed her employment in contravention of Part 3-1 of the Act.
In support of her request for an extension of time for filing, the applicant filed the following material:
(a)Application – Fair Work Division and Form 2 – Claim under the Fair Work Act 2009, alleging dismissal in contravention of a general protection filed 5 June 2023;
(b)s 368 Certificate filed 11 July 2023;
(c)affidavit of the applicant filed 26 October 2023; and
(d)written submissions filed on 26 October 2023.
On 12 October 2023, Mr Curran of Thomson Geer was appointed by the Victorian Legal Services Board as Manager of the respondent, pursuant to s 334 of Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).
Following a directions hearing on 23 November 2023, Mr Curran advised the Court that the respondent did not intend to file any material in response to the applicant’s Application for an extension of time.
Relevant rules for the filing of documents
Rule 2.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), relevantly, provides as follows:
How documents may be filed
(1)A document must be filed by electronic communication as permitted by the Court, unless it is not reasonably practicable to do so.
(2)If it is not reasonably practicable to file a document by electronic communication in accordance with subrule 2.08(2), it may be filed, in order of preference, by:
(a) emailing it to the registry; or
(b) delivering it to the registry; or
(c) sending it to the registry by post; or
(d) faxing it to the registry.
(3) A document is filed when:
(a) the filing fee has been paid (or an exemption or deferral applies); and
(b)the document is accepted for filing by the Registry Manager and sealed with the seal of the Court or marked with the stamp of the Court, as required by Division 2.4.
…
(4)However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:
(a)if the whole document is received by 4.30 pm on a day the Registry is open for business—on that day; or
(b) in any other case—on the next day the Registry is open for business.
Rule 2.06 of the Rules provides:
Registrar may refuse to accept document
A Registrar may refuse to accept a document for filing if:
(a)the Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or
(b)the document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or
(c)the rules relating to the electronic filing of documents have not been complied with.
Rule 2.08(2) of the Rules relevantly provides that:
(2) A document sent to a Registry for filing by electronic communication must:
(a)be lodged using eLodgment at and
(b) be in an electronic format approved for the Registry; and
(c) be in a form that complies with rule 2.04; and
(d) be able to be printed with the content, and in the form, created.
Note: Approved electronic formats are listed on the Federal Court website at >
Rule 30.04 of the Rules provides:
Application in relation to dismissal from employment in contravention of a general protection (Fair Work Act, subsection 539(2), table item 11)
An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must:
(a) be in accordance with the approved form; and
(b) be accompanied by:
(i) a claim in accordance with the approved form; and
(ii) unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under the Fair Work Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
…
Note 3: An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim (see rule 4.04).
WHETHER THE APPLICATION IS OUT OF TIME
Section 370 of the Act provides that a person who is entitled to apply under s 365 for the Fair Work Commission (Commission) to deal with a dispute must not make a general protections Court Application in relation to the dispute unless:
(a)the Commission has issued a certificate under paragraph 368(3)(a) of the Act in relation to the dispute; and
(b)the Application to the Court 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.
On 16 May 2023 the Commission issued a s 368 certificate confirming that the Commission was satisfied that all reasonable attempts to resolve the dispute between the parties to this application (other than by arbitration) have been, or are likely to be, unsuccessful.
At 4.46pm on 30 May 2023, the applicant (on her own behalf) attempted to lodge an Application – Fair Work Division, Form 2, s 368 certificate, a fee waiver form and a number of other documents (being 17 in total) by email to the Court’s Melbourne Registry. On 31 May 2023, the Court’s Registry staff responded by email and informed the applicant that the documents were not in the correct or approved form and needed to be resubmitted. The Registry also advised the applicant that at that time she was only required to file a Fair Work Originating Application, Form 2 (certificate, compensation letter and evidence attached) and the Fee Exemption Form.
On 2 June 2023, the applicant attempted to lodge the documents again by email to the Court’s Melbourne Registry. On 5 June 2023, the Court’s Registry staff responded by email and informed the applicant the documents would be filed once the name of the respondent on the documents was amended to reflect the name as it appears on the s 368 certificate. It was further noted by the Court’s Registry staff that once they received the amended documents, Registry would file the documents and backdate the lodgement date to 30 May 2023, being the date Registry received the applicant’s initial email.
At 4.50pm on 5 June 2023, the applicant’s substantive Application was accepted for filing. Despite Registry informing the applicant that the documents would be backdated once lodged in the correct or approved form, this did not occur.
Section 370(a)(ii) of the Act requires the applicant to have made her Application to this Court within 14 days of the s 368 certificate being issued. As noted above, the s 368 certificate was issued on 16 May 2023. The applicant’s Application was therefore required to be filed by 30 May 2023. The Application was not filed in the approved form, and therefore was not made in accordance with the Court’s Rules, until 5 June 2023.
Accordingly, the Application was filed 6 days after the expiry of the statutory timeframe. The applicant concedes this.
WHETHER TO ALLOW AN EXTENSION OF TIME FOR FILING
As stated above, s 370(a)(ii) of the Act requires that an Application in this Court be made within 14 days of the s 368 certificate being issued. However, s 370(a)(ii) also vests in the Court a broad general discretion to grant an extension of time if it deems it appropriate to do so.
In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns) at 299-300, Marshall J set down principles relating to the exercise of the Court’s discretion to extend time beyond the prescribed period. The principles, regularly applied in this jurisdiction, are as follows:
(1)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;
(2)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;
(3)Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time;
(4)The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time;
(5)The merits of the substantive application may be taken into account in determining whether to grant an extension of time; and
(6)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 onus falls on the applicant to satisfy the Court that grounds exist for exercising the Court’s discretion to grant an extension of time in her favour, and the respondent bears an evidentiary onus to raise any consideration telling against the exercise of the Court’s discretion: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Toohey and Gummow JJ at [547].
The Brodie-Hanns principles were more recently considered and applied by Justice Burley in Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [147].
I now turn to consider the facts and circumstances of this matter consistent with the authority and well-established, albeit non-exhaustive, principles identified in Brodie-Hanns.
Length and explanation for the delay
The application was filed 6 days after the expiry of the statutory timeframe.
As is evident from the sequence of events set out above, the applicant had attempted to file with the Registry within the statutory timeframe on 30 May 2023, but did not submit the documents in the correct or approved form to be received as filed and stamped. The affidavit of the applicant filed 26 October 2023 annexed evidence to support the assertion that she lodged the documents at 4.46pm on 30 May 2023 by way of email to the Court’s Melbourne Registry. The applicant’s evidence is that following communications from the Registry, she again sought to file the Application on 2 June 2023 but the documents again were not accepted by the Registry. The applicant’s unchallenged evidence is that she made many calls to the Registry between 30 May 2023 and 5 June 2023 regarding the filing of the Application. The affidavit of the applicant further annexed evidence of correspondence between the applicant and the Court’s Registry staff about the filing requirements and amendments that were required at 12.57pm on 5 June 2023.
The documents were filed and stamped on 5 June 2023. As already set out, although the applicant was informed by the Registry that the filing of the documents would be “backdated” to 30 May 2023, this did not occur.
For completeness, the applicant contends in her submissions that she experiences psychological and physical health issues which have been exacerbated due to the manner of her termination and that this also hampered her ability to file the Application within the time limitation period. However, there is no evidence of any kind before the Court to support this submission. I do not consider it provides an acceptable explanation for the delay in filing.
In all of these circumstances, I am satisfied that there is an acceptable explanation for the applicant’s delay. The applicant was not represented by a lawyer at the time of filing, nor is she currently. The applicant attempted to file within the statutory timeframe and acted promptly in seeking to remedy concerns with the documents as raised by the Registry. Further, the applicant was informed by the Registry that the filing would be backdated to 30 May 2023. These factors weigh in favour of the discretion to extend the time for filing.
Action taken by the applicant to contest the termination
The applicant took steps to contest the dismissal by filing the application with the Commission.
As set out above, the Commission issued a s 368 certificate on 16 May 2023 confirming that the Commission was satisfied that all reasonable attempts to resolve the dispute between the parties to this application (other than by arbitration) have been, or are likely to be, unsuccessful.
This weighs in favour of the discretion to extend the time for filing.
Prejudice and fairness
As set out above, the respondent did not file any evidence or make any submissions.
The delay is not lengthy and I do not consider that the delay in filing gives rise to any particular prejudice to the respondent. However, in my view, the absence of prejudice in and of itself is not a matter weighing in favour of the exercise of the discretion.
As stated above, the applicant is self-represented and the documents filed on her behalf suggest a lack of familiarity with Court Rules and processes. It can be inferred that the respondent is better resourced due to their profession as a legal practitioner and would be able to prepare a Defence to the substantive application. There is potential for unfairness if the applicant cannot prosecute what she believes is a meritorious claim. This factor weighs in favour of the discretion to extend the time for filing.
Merit of the substantive claim
The Court has before it an Application and accompanying Form 2 – Claim under the Fair Work Act 2009, alleging dismissal in contravention of a general protection.
The Application contains, amongst other things, the following options for the applicant to select:
In the Application the applicant selected the first option: “The grounds of the application are set out in the claim filed with this application.”
The applicant’s Form 2 under Part G “Contravention(s) alleged” alleges contraventions in the following terms:
I was dismissed unfairly and in contravention of a general protection and my grounds for this are multiple adverse actions taken by Thomas Flitner as detailed in Part G of my submission.
Part G of the Form 2 also provides as follows:
Please see attached “Part G – Statement of Claim” document, which details the grounds for each allegation, along with the remedy sought and corresponding attachments listed.
Please see attached a separate “Transcript of Recording” of the Meeting with Thomas Flitner, before he terminated me.
Please see attached the “Termination” Letter from Thomas Flitner.
The Form 2 does not, therefore, articulate the grounds of the alleged contraventions. Further, none of the documents referred to in Part G are attached to the Form 2. There is, therefore, no articulation before the Court of the applicant’s claims and the alleged contraventions. This is despite multiple attempts by the applicant to file her material in accordance with the Rules of Court, the applicant being advised by the Registry on 31 May 2023 that it would not accept multiple attachments and documents for filing, the applicant being advised on that date to file only the Fair Work Originating Application, Form 2 (certificate, compensation letter and evidence attached) and the Fee Exemption Form, the applicant identifying in the Application that “the grounds of the application are set out in the claim filed with this application.” and Part G of the Form 2 expressly providing for the articulation of the alleged contraventions.
The applicant’s written submissions filed on 26 October 2023 contend that the allegations against the respondent can be broadly summarised as follows:
i.Adverse action;
ii.Loss of wages and entitlements;
iii.Pain and suffering.
The applicant submits that “it will be seen from the Applicant’s affidavit and Form 2 dated 30 May 2023 and filed 5 June 2023, that these allegations have a sound basis for granting the extension, particularly when considering that the reverse onus provision pursuant to s 361 of the Act will be enlivened”.
On the evidence before the Court, there are simply no grounds of the alleged contravention asserted, let alone anything upon which it could be established that such grounds have a sound basis. This is not a matter where claims are made but not properly articulated. In the matter presently before the Court, there is a complete absence of any articulation of any claim. In the absence of any articulation of the contraventions alleged against the respondent in the Form 2, the Court is unable to identify the claims made or how the case advanced against the respondent is put. I have taken into account that the applicant is unrepresented, however I must proceed with the Application on the basis of the evidence and material before me. Further, I am satisfied that the applicant was provided with assistance from the Registry to best enable her to file her material.
As the applicant for an extension of time, Ms Ramadge bears the onus. Neither the applicant’s Form 2, the affidavit nor the submissions filed in support of the Application for an extension of time elucidate the nature of the claim, or its underlying merit, if any.
DISPOSITION
I have carefully considered and weighted each of the relevant factors which inform my discretion to extend time under s 370 of the Act. I have taken into consideration that there is an acceptable explanation for the delay and certain other factors weigh in favour of the exercise of discretion to grant of an extension of time. I have taken into account the applicant is self-represented. However, I am not satisfied in all the circumstances that it is appropriate to extend time. In my view, the absence of any articulated claim possible of prosecution or articulation of how the case against the respondent is put weighs overwhelmingly against the grant of an extension of time.
Accordingly, the Application for an extension of time is refused.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 14 December 2023
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