Ryan v J-Corp Pty Ltd
[2018] FCCA 2403
•29 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
RYAN v J-CORP PTY LTD [2018] FCCA 2403
Catchwords:
INDUSTRIAL LAW – General protections application under Fair Work Act 2009 (Cth) – application for extension of time – consideration of factors – request for extension granted
Legislation:
Federal Circuit Court Act (Cth), s.46, 81(2)
Federal Circuit Court Rules (Cth), rr.2.05(3), 21.02(1)(a)Fair Work Act 2009 (Cth), ss.340, 368, 370, 570(2)
Cases cited:
ALG17 & Ors v Minister for Immigration & Anor [2017] FCCA 2816
Atkinson v Killarney Properties Pty Ltd & Ors [2016] FCCA 3233
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
CFMEU & Another v Form 700 Pty Ltd and Others [2017] FCCA 136
Clark v Ringwood Private Hospital (1997) 74 IR 413
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
Moon v JLG Industries (Australia) [2011] FMCA 343
MZZLD v Minister for Immigration & Border Protection [2016] FCA 1201
Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878
Spratt v Vulcan Steel Pty Ltd T/A Vulcan Stainless [2016] FCCA 1196
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327
Wilson v Nowra Coaches Pty Ltd [2014] FCCA 1916
Applicant: KELVIN RYAN
Respondent: J-CORP PTY LTD
File Number: PEG 691 of 2017
Judgment of: Judge Kendall
Hearing date: 6 August 2018
Date of Last Submission: 6 August 2018
Delivered at: Perth
Delivered on: 29 August 2018 REPRESENTATION
Counsel for the Applicant: Mr S. Heathcote
Solicitors for the Applicant: Steve Heathcote, Barrister and Solicitor
Counsel for the Respondent: Mr M. Lundberg
Solicitors for the Respondent: Quinn Emanuel Urqhart & Sullivan ORDERS
(1)Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (FWAct), the applicant may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s.368 of the FW Act on 27 November 2017 within fifteen days of the day on which that certificate was issued.
(2)The matter stand over for directions at a time and date to be fixed.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTHPEG 691 of 2017
KELVIN RYAN Applicant
And
J-CORP PTY LTD Respondent
REASONS FOR JUDGMENT
Application
1.By application in a case filed 6 March 2018, the applicant seeks an extension of time within which to commence general protection proceedings against the respondent.
2.The respondent opposes the applicant’s application for an extension of time primarily because the applicant’s solicitor has failed to provide a reasonable explanation as to why the substantive application was filed late.
Background
3.The applicant lodged a complaint with the Fair Work Commission (the “Commission”) against the respondent claiming that the respondent contravened Part 3-1 of the Fair Work Act 2009 (Cth) (the “FW Act”) when it terminated his employment.
4.On 21 November 2017, the Commission conducted a conciliation conference in an attempt to resolve the dispute.
5.This conference was unsuccessful and Commissioner McKinnon issued a certificate under s.368 of the FW Act on 27 November 2017 (the “Certificate”).
6.The applicant had 14 days from the date of the Certificate within which to make a general protections court application to this Court for a civil remedy order, unless the Court agreed to extend the time for making such an application (see s.370 (1)(a)(ii) of the FW Act).
7.The applicant was therefore obliged to bring his application by 4.30pm on 11 December 2017.
8.On 11 December 2017 at 8:17pm, the applicant lodged his Originating Application.
9.On 20 April 2018, the applicant filed an Interlocutory Application seeking an extension of time to file his Originating Application together with the applicant’s affidavit sworn on 20 April 2018 (“Applicant Affidavit”).
10.The Court also had before it the affidavit of Adam Rompotis sworn on 11 May 2018 (“Rompotis Affidavit”) which was filed on behalf of the respondent.
Consideration
Was the applicant’s Origination Application filed out of time?
11.It is not in dispute that the applicant filed his Originating Application electronically on 11 December 2017 at 8:17pm
12.Section 370 of FW Act provides:
370 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.
(emphasis added)
13.The meaning of ‘day’ for the purposes of s.370 of the FW Act is not defined in the FW Act or any other relevant legislation.
14.The Court notes that in Moon v JLG Industries (Australia) [2011] FMCA 343 (“Moon”) Federal Circuit Court Judge Lucev concluded (at [11] - [17]) that the word ‘day’ means a calendar day subject to the qualification unless the contrary intention specifically appears or can be implied (see Wilson v Nowra Coaches Pty Ltd [2014] FCCA 1916 as per Judge Whelan at [37]).
15.Relying on Moon, the applicant submits that:
a)section 370 of the FW Act gives the applicant 14 days in which to make his application;
b)the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) cannot truncate or reduce that entitlement administratively (see s.81(2) of the Federal Circuit Court Act 1999 (Cth) (“FCCA”)); and
c)as a consequence, the applicant had until midnight on 11 December 2017 to make the Originating Application under s.370 of the FW Act because the Rules, if they are not read as subject to that entitlement, will effectively deprive him of some of that entitlement.
16.The applicant argued, on the basis of the above, that because the Originating Application was in fact made on 11 December 2017, the Court should conclude that it was made within 14 days of the date on which the Commission issued the Certificate.
17.Conversely, the respondent submitted that the effect of r.2.05(3) of the Rules is that the substantive application was not ‘made’ within 14 days because the application was not submitted electronically before 4:30pm on 11 December 2017.
18.Rule 2.05(3) of the Rules states:
… a document sent by fax or electronic communication, if accepted, is taken to have been filed:
if the whole document is received by 4.30 pm on a day the Registry is open for business--on that day; and
in any other case--on the next day the Registry is open for business.
19.The Court agrees with the respondent’s submissions.
20.The issue of filing a general protections court application with this Court was addressed in Atkinson v Killarney Properties Pty Ltd & Ors [2016] FCCA 3233 (“Atkinson”). In Atkinson, a general protections court application was electronically filed by the applicant after 5:00pm on the last day for filing. As a result, an application for an extension of time was required.
21.It is noteworthy that the solicitor for the applicant in that matter, Mr Heathcote, is also the solicitor acting for the applicant in this matter. In circumstances where the decision record of Atkinson (at [3]) shows that Mr Heathcote understood the deadline for filing was 4:30pm on the last day for filing, the Court finds his latest argument somewhat perplexing.
22.In any event, the Court does not accept that the decision in Moon supports the proposition that s.370 of the FW Act allows an applicant to file an application until midnight. The decision in Moon is distinguishable as it does not address the issue of whether the Rules limit the rights conferred under the FW Act, as rightly pointed out by the respondent.
23.Section 46 of the FCCA clearly requires documents filed with the Court be filed in accordance with the Rules – rules which expressly state that documents filed after 4:30pm are taken to have been filed the next day.
24.The Court rejects the applicant’s argument that the Rules curtail a purported right to file documents with this Court until midnight. This argument, which requires a particularly severe reading down of the Rules, is untenable when the meaning of ‘day’ is not defined in the FW Act or any other relevant legislation.
25.Whether an application has been filed on time is determined by reference to the Rules, not the FW Act.
26.Having regard to the above, the Court finds that pursuant to r.2.05(3) of the Rules the applicant’s Originating Application was filed on 12 December 2017, one day out of time.
27.As a consequence of the Originating Application being filed out of time, the Court will address the applicant’s extension of time application.
Application for an extension of time
28.In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (“Brodie-Hanns”) the Industrial Relations Court of Australia outlined the principles to be applied to applications for an extension of time brought under s.370(a)(ii) of the FW Act.
29.These principles are not exhaustive. Nor are they binding: Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327 at [33]-[36]. However, these principles do outline the relevant factors to be taken into account when considering whether an extension of time should be granted and are regularly applied by this Court.
30.The principles in Brodie-Hanns can be summarised as follows:
·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 for the delay which makes it equitable to so extend.
·Action taken by the applicant to contest the termination, other than applying under the FW 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.
·Prejudice to the respondent, including prejudice caused by delay, will go against the granting of an extension of time.
·The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
·The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
·Considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
31.This Court also has regard to the oft applied principles in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (“Hunter Valley”). In Hunter Valley, the Federal Court of Australia (per Wilcox J at [348]-[350]) provided a non-exhaustive list of factors relevant to whether an extension of time ought to be granted. These include:
·the extent of the delay;
·the explanation for the delay;
·any prejudice a respondent might suffer because of the delay; and
·the merits of the proposed application.
Extent of the delay
32.The length of delay in this matter, one day, is not significant and may best be described as short.
33.However, in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 McHugh J said the following of limitation periods (CLR 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.
34.In that case, McHugh J also said that a limitation provision is the general rule; an extension provision is the exception to it (CLR at 553).
35.In relation to this matter, the Court notes the relatively short period of time in question. While not to be treated lightly, the fact that the period in question is not substantial goes towards granting the extension of time.
Explanation for the delay
36.Whether an applicant’s explanation for the delay can be said to justify the delay depends on the circumstances of each individual case: ALG17 & Ors v Minister for Immigration & Anor [2017] FCCA 2816 at [20] per Nicholls J.
37.In these proceedings the solicitor for the applicant explained the reason for delay in his outline submissions dated 11 July 2018 as follows:
4.3 The delay is a result of representative error.
4.4 The Applicant was aware of the limitation period and was diligent in giving the instructions that were necessary and sufficient for his legal representatives to prepare the Application and claim form.
4.5 The Applicant gave specific instructions that the Application was to be lodged within the 14-day limitation period, and he followed up with his legal representatives to confirm that the Application was prepared in time, and to confirm that, in fact, it had been made in time.
4.6 The Applicant’s diligence in trying to ensure compliance with the 14-day limitation period weighs in favour of granting an extension of time. No aspect of any delay was the Applicant’s fault.
4.7 It is well established that a client should not suffer by reason of an error made by his or her representative. For convenience, a number of relevant authorities are cited in Judge O’Sullivan’s judgment in CFMEU & Another v Form 700 Pty Ltd and Others [2017] FCCA 136 (2 February 2017)[22]-[24].
38.The respondent argues that no acceptable explanation of the delay has been provided by the applicant or applicant’s solicitor.
39.In Clark v Ringwood Private Hospital (1997) 74 IR 413 (“Clark”) the Australian Industrial Relations Commission addressed representative error as an explanation for delay in extension of time cases, albeit under previous legislation, and set out the following guidelines to be taken into account when assessing whether representative error is an acceptable explanation for a 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.
40.In relation to the above, the applicant’s evidence contained in his affidavit sworn 20 April 2018 is that:
·he alerted his legal representatives prior to and shortly after the Certificate being issued that he wished to progress his claims; and
·he later contacted his legal representatives twice during the period of 27 November 2017 and 11 December 2018 to confirm that his application was being prepared in a timely manner.
41.The Court accepts this evidence and is satisfied that the applicant made efforts to ensure that his application was filed on time. On the evidence available, the Court is satisfied that the applicant was not responsible for, nor did he contribute to, the delay in filing the Originating Application.
42.The Court concludes that the applicant’s legal representative, Mr Heathcote, was solely responsible for the delay in filing the applicant’s Originating Application. This is a conclusion which is consistent with Mr Heathcote’s own submissions
43.Despite these findings, the Court is left in the unenviable position of not having any evidence before it explaining why Mr Heathcote did not, or was unable to, file his client’s Originating Application within time.
44.Relevantly, there is little evidence explaining what steps Mr Heathcote took between 27 November 2017 and 11 December 2018 to ensure that the Originating Application was filed on time or what caused Mr Heathcote to file the Originating Application late.
45.During the proceedings, Mr Heathcote was asked why he, as the applicant’s solicitor, did not file an affidavit detailing the reason for his delay in filing. Mr Heathcote explained that he did not file such an affidavit because it was his understanding that it was the applicant’s conduct and applicant’s explanation for the delay (in this case representative error) that were relevant to the extension of time application.
46.Mr Heathcote explained that he “did not think” that an affidavit from him explaining the delay would be needed but that if the Court was willing to adjourn the matter he would now provide the Court with an affidavit to this effect.
47.This suggestion was strongly opposed by the respondent. The respondent submitted that the issue of Mr Heathcote filing further affidavits was put to him well before the hearing of the extension of time application (Annexure “AR-10” of Rompotis Affidavit).
48.Having reviewed the evidence, between 23 April 2018 and 26 April 2018, the solicitors for the respondent asked Mr Heathcote whether his client would be filing further affidavits on multiple occasions (Annexure “AR-10” of Rompotis Affidavit -- approximately 105 days before the hearing of this matter).
49.In these circumstances, the Court refused to allow Mr Heathcote further time to seek instructions to file additional affidavit material. His offer was made too late in the piece and for him to suggest that he didn’t think about it until the day of the hearing of his extension of time application is, with respect, unacceptable. His client deserved much better from him, as did the respondent in these proceedings.
50.As it relates to an explanation for the delay in filing the applicant’s Originating Application, Mr Heathcote’s letter of 11 April 2018 provides the following chronology of the events leading up to the finalisation and subsequent filing of the application:
9. On 21 November 2017, the date on which the Commission convened a conciliation conference, I gave my client advice to the effect that, if the conciliation conference did not produce a resolution, the Commission would issue a section 368 certificate, and he would have 14 days after that certificate was issued in which to make an application to the court.
10. On 27 November 2017, I received an email from Commissioner McKinnon's chambers attaching the section 368 certificate.
11. I subsequently spoke to my client on the telephone to confirm that the section 368 certificate had been issued and to confirm that we had instructions to prepare an application and claim to the court. In the course of that discussion, I reminded my client of the limitation period and he gave specific instructions that we make sure that the application was filed in time. I assured him that it would be filed in time.
12. On or around 28 November 2017, I gave instructions to a staff member to prepare the application and claim.
13. Sometime after the application was prepared, and before it was lodged, my client contacted me by telephone to check on our progress, and to reiterate his instructions that we comply with the limitation period. I again assured him that we would lodge the application in time.
14. I settled the application and claim on 11 December 2017. The final version of the application was saved at 16:46 and the final version of the claim was saved at 20:06 on that day.
15. I immediately e-lodged both documents, and I completed that process at 20:17.
51.The Court notes that in Clark, whether or not representative error constitutes an acceptable explanation for delay will depend on the particular circumstances of a case. In this case Mr Heathcote’s has not provided an explanation for the delay other than a bare assertion that it was filed late and that the applicant was faultless in the delay. This is completely inadequate.
52.The Court has considerable sympathy for the applicant. It is clear that the despite his client’s best endeavours Mr Heathcote has failed to effectively execute his instructions and has then failed to explain why this is so.
53.Without evidence to establish an acceptable explanation for the failure of the applicant’s representative to commence these proceedings within the prescribed time limit, Mr Heathcote’s less than detailed explanation that the delay was his fault and not his client’s is simply inadequate.
54.In these circumstances the Court is not satisfied that there is an “acceptable explanation" of the delay in this matter.
55.This weighs heavily against the granting of an extension of time
Merits of the Substantive Application
56.In relation to whether the applicant’s originating application has merit the Court is guided by the comments of Murphy J in MZZLD v Minister for Immigration & Border Protection [2016] FCA 1201(“MZZLD”) at [21]:
In MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 (at [62]-[63]) Mortimer J said that a judge hearing an application for extension of time should decide whether the substantive application is “plainly hopeless” and that the correct approach included deciding whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. This is long established. In Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83 at 97, [29] French J described the test as whether the substantive application has a reasonable prospect of success, which was “to say no more than that there is a finite non-trivial probability that it will succeed” based upon a necessarily incomplete consideration of the case. His Honour then noted that “[i]t is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account”.
57.The Court further notes the comments of the Federal Court in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 (at [49] as per Wigney J) that, in the context of an application 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.
58.In summary the applicant claims that the respondent contravened s.340 of the FW Act when it took adverse action against him because he exercised a work place right and did so to prevent him from further exercising his workplace rights.
59.In relation to the merits of the Origination Application it was submitted on the applicant’s behalf as follows:
4.10.The merits of the Application can’t be assessed without considering the evidence, and that can’t be done in the course of this application in a case.
4.11.However, as French J opined in Seiler and others v Minister of Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at [29] the Court need only discern that the Application:
(a)has a “…finite non-trivial probability that it will succeed”; and
(b)is not hopeless.
4.12.Given the undisputed evidence of adverse action and the Applicant exercising a workplace right, and given the effect of section 360 and section 361, it would be wrong to conclude that the Applicant’s case was hopeless and destined to fail.
4.13.A decision to refuse the grant an extension of time based on the merits of an application is, in effect, a decision to strike it out. The Court should be extremely cautious in that regard because, unless the case is hopeless, a refusal would inflict an injustice on the Applicant.
60.In opposition, the respondent argued that there were serious deficiencies in the originating application. The respondent submitted in this regard as follows:
19 First, the Applicant had resigned at the time of exercising his purported workplace right to lodge a grievance. Curiously, this has been glossed over by the Applicant and is not evident on the face of the Applicant's claim. Paragraph 7 of the claim states that the Applicant resigned on 4 May 2017 and withdrew the resignation a few weeks later. The Applicant in fact withdrew his resignation on 14 June 2017, after he allegedly lodged a grievance and met with Mr Teo to progress that grievance. The utility in initiating or advancing a grievance process when the Applicant had signalled his decision to leave the Respondent necessarily raises serious questions about the bona fides of the Applicant's grievance.
20 Second, on 5 March 2018 the Applicant commenced as CEO and Managing Director of Simonds Group Limited, with a base salary of $600,000 per year and up to$1,200,000 in cash and share allotment bonuses available each year (and up to$1,400,000 in the first year). In addition, the Applicant was paid a termination payment package of $552,986.89 after tax ($1,034,729 pre-tax) by the Respondent. The amount of compensation payable if the Applicant were to succeed on the Primary Application would necessarily be reduced by the termination payment and the amount of income the Applicant has earned during any period that he can prove he would otherwise have been employed by the Respondent.
21 In those circumstances, there would appear to be no basis for the Applicant's claim that he is entitled to any compensation, even if, contrary to the Respondent's position, the Applicant is able to demonstrate that he was terminated in circumstances contrary to section 340 of the Fair Work Act.
(Footnotes omitted)
61.In relation to the merits of the application the Court should only undertake a necessarily preliminary consideration of the applicant’s case.
62.Certainly, if what the applicant alleges did happen then it may well be argued that the respondent did contravene s.340 of the FW Act when the applicant’s employment was terminated on 26 September 2017.
63.The issue of the applicant’s resignation is matter which would need to be ventilated at a final hearing and will not be addressed in detail today.
64.The Court is satisfied that the merits of the applicant’s case meet the requisite standard that there be a finite non-trivial probability that it will succeed: see Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878 at [29].
65.Accordingly, this is a consideration that weighs in favour of granting the extension of time.
Prejudice to the Respondent
66.The mere absence of prejudice to a respondent is an insufficient basis to grant an extension of time. The facts and circumstances as a whole need to be examined.
67.The respondent’s submissions in relation to this issue are, in effect, that, despite the delay being only one day the Respondent would be prejudiced because the Origination Application would be “hard fought” and there would be a significant delay before the matter could be heard in this Court.
68.The Court accepts that this would be the inevitable consequence of granting the extension of time, but does not accept that this in itself is a reason not to grant an extension of time.
69.Further, on the affidavit material before this Court, the Court is satisfied that the respondent had notice that the applicant was going to bring this application. There is also little doubt that the respondent was aware that the time limit is not an absolute time limit. Certainly the wording of section 370(a)(ii), being “or within such period as the court allows on an application made during or after those 14 days” put them on notice.
70.Given the short delay in filing the Originating Application and the respond all the while being aware that the applicant always intended to bring their application, the Court is satisfied that the respondent does not face any significant prejudice if the extension of time is granted
71.Accordingly, this is a consideration does not weigh against granting the extension of time.
Considerations of fairness
72.The Court must weigh considerations of fairness as between the applicants and the respondents and take into account the public interest: CFMEU & Another v Form 700 Pty Ltd and Others [2017] FCCA 136 at [31] per Judge O’Sullivan.
73.The Court notes that the expiration of the time limit within which to file an application to this Court had the effect of extinguishing the applicant’s claim. Not granting the extension of time would mean that the applicant’s claim could not be resuscitated.
74.During the proceedings, counsel for the respondent submitted that there was no economic loss component to the applicant’s Originating Application and any pecuniary penalties, if they were awarded, would be paid to the Commonwealth of Australia.
75.It was submitted that, in these circumstances, together with the applicant having received a significant termination payment and then securing employment with a base salary of $600,000, it was unclear (if the extension of time were to be not granted) what economic loss the applicant could claim and thus be seen to suffer.
76.While this might well be the case, it does not detract from the fact that while the applicant might not suffer economic loss overall, she is still entitled in law to make a claim and put her, regardless of the remedies sought. Why he would choose to do so is not an issue for Court.
77.The Court is also mindful that there is no discernible unfairness to the public by extending the time for filing, particularly given the short time frame in question: Spratt v Vulcan Steel Pty Ltd T/A Vulcan Stainless [2016] FCCA 1196 at [73] per Judge Brown).
78.Importantly, the Court is also conscious that in Clark (at 419) it was stressed that it is the applicant’s conduct which is the primary consideration (not his or her solicitor). The Court also notes that in Hunter Valley at 351, Wilcox J emphasised that it would be erroneous to treat the fault of the solicitors as if it were the direct default of the client.
79.Overall, given that:
· there is little discernible prejudice to the respondent in the circumstances of this case should an extension of time be granted;
· not granting the extension of time would have the effect of extinguishing the applicant’s claim; and
· the reason for the delay falls entirely on the shoulders of a solicitor who failed to do what his client asked him to do and then failed to explain to the Court why this was the case,
the Court is of the opinion that it would be most unfair to the applicant to deny him an extension of time within which to file his Originating Application.
Conclusion
80.The Court has assessed the principles outlined in Brodie‑Hanns and Hunter Valley in determining whether to grant the applicant the 1 day extension of time he seeks.
81.Although the Court remains concerned with the complete failure of the applicant’s solicitor to execute his client’s wishes and his failure to explain to the Court why that occurred, the Court finds that, on balance, it would most unfair to this applicant if he were punished for his solicitor’s short comings.
Orders
82.Pursuant to s.370(a)(ii) of the FW Act, the applicant may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s.368 of the FW Act on 27 November 2017 within fifteen days of the day on which that certificate was issued.
83.In relation to costs, and bearing in mind the provisions of s.570(2) of the FW Act, which make costs in FW Act proceedings in this Court the exception rather than the rule, the parties to these proceedings will need to give consideration as to whether a costs application by them is justified in the circumstances. If a costs application is to be made then it can be made in accordance with the provisions of r.21.02(1)(a) of the Rules, and if any such application is made, the Court will list that costs application for directions: Atkinson at [46]
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 29 August 2018
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