Slade v North Coast Multi Trade Pty Ltd - [2014] FCCA 1164

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLADE v NORTH COAST MULTI TRADE PTY LTD

[2014] FCCA 1164

Catchwords:

INDUSTRIAL LAW – Termination of employment – unfair dismissal.

PRACTICE & PROCEDURE – Extension of time – delay – filing of general federal law documents in family law registry – extension of time allowed.

Legislation:

Fair Work Act 2009 (Cth) ss.340, 341, 369, 370, 371
Workplace Relations Act 1996 (Cth)

Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
Ejueyitsi v Bond University [2012] FCA 1514
Taj v Western Health [2013] FCA 1226

Applicant:

AMANDA SLADE

Respondent:

NORTH COAST MULTI TRADE PTY LTD

File Number:

BRG 1030 of 2013

Judgment of:

Judge Burnett

Hearing date:

26 February 2014

Date of Last Submission:

26 February 2014

Delivered at:

Brisbane

Delivered on:

26 February 2014

REPRESENTATION

Solicitors for the Applicant:

SP Lawyers

Solicitors for the Respondent:

Stacks The Law Firm

ORDERS

That the time for commencing the Applicant’s application be enlarged to 5 November 2013.
That the matter be listed for mention at 9:30am on 12 March 2014.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1030 of 2013

AMANDA SLADE

Applicant

And

NORTH COAST MULTI TRADE PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

On 5 November 2013 the applicant commenced this application seeking relief against the respondent, alleging unfair dismissal and contravention of a general protection. Her complaint had been unsuccessfully progressed through the processes provided by Fair Work Australia in accordance with Division 8 of Chapter 3 Part 3-1 of the Fair Work Act 2009 (Cth) (“the Act”). The dispute could not be resolved and on 10 October 2013 Fair Work Australia issued a certificate pursuant to s.370. Section 370 relevantly provides:
“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.”
Section 371(2) is headed “Time for application.” It provides:
“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.”
The s.369 certificate having issued on 10 October 2013, the applicant ought to have commenced her application on or before 25 October 2013. In fact, she commenced on 5 November 2013; that is, about 11 days late. She now seeks by application pursuant to s.371(2) an enlargement of time to commence the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 1164
Decision Date: 26 February 2014

CaseChat Overview and Summary

Slade (the applicant) brought proceedings against North Coast Multi Trade Pty Ltd (the respondent) alleging unfair dismissal. The matter came before Judge Burnett in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the applicant had established a prima facie case of unfair dismissal and, if so, whether an extension of time should be granted for the filing of the application. The applicant had initially filed the general federal law documents in the Family Law registry, which caused a delay in the matter being properly before the court.

Judge Burnett considered the applicant's explanation for the delay, which involved a misunderstanding of the correct registry for filing. The court noted that the delay was not inordinate and that the respondent would not suffer any significant prejudice if an extension were granted. Applying the principles governing extensions of time in such matters, the court found that it was in the interests of justice to permit the late filing. The court was satisfied that the applicant had a arguable case of unfair dismissal.

Consequently, the court granted the applicant an extension of time to file the application.

Orders