Spratt v Vulcan Steel Pty Ltd T/A Vulcan Stainless

[2016] FCCA 1196

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPRATT v VULCAN STEEL PTY LTD T/A VULCAN STAINLESS [2016] FCCA 1196

Catchwords:
INDUSTRIAL LAW – PRACTICE & PROCEDURE – Extension of time application to commence proceedings under Fair Work Act 2009 regarding general protection – extension sought a period of twenty three days – whether delay adequately explained – prejudice – merits of the application – fairness.

Legislation:

Fair Work Act 2009, ss.340, 343(1), 344(c),(d) & (e), 345, 351, 365, 368, 371(2), 545(2)

Federal Circuit Court Rules 2001, rr.4.05, 45.06

Cases cited:
Brodie-Haans v MTV Publishing (1995) 67 IR 298
Clarke v Service to Young Council Incorporated & Ors [2013] FCA 1018
Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541
Milas v GM Holden Limited [2015] FCCA 1311
Owen v Cudeco Limited [2013] FCCA 1827

Applicant: CHRISTIAN BURGESS SPRATT

Respondent: VULCAN STEEL PTY LTD T/A VULCAN STAINLESS

File Number: ADG 64 of 2016

Judgment of: Judge Brown

Hearing date: 13 May 2016

Date of Last Submission: 13 May 2016

Delivered at: Adelaide

Delivered on: 20 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Moen

Solicitors for the Applicant: Edge Law

Counsel for the Respondent: Mr Colgrave

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The time for filing the application herein be extended to 29 February 2016.

2. Further consideration of the matter is adjourned to 18 July 2016 at 9:30am for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 64 of 2016

CHRISTIAN BURGESS SPRATT

Applicant

And

VULCAN STEEL PTY LTD T/A VULCAN STAINLESS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Christian Burgess Spratt, seeks an extension of time in which to bring an application for general protection, pursuant to the provisions of the Fair Work Act 2009 (Cth)[1] in respect of his dismissal from his employment, with the respondent, Vulcan Steel Pty Ltd.

   [1]  Hereinafter referred to as the FWA or the Act

2. The applicant was employed by a company, Sandvik Materials Technology from November 1998 onwards.  Sandvik was acquired by the respondent in October 2014.  The applicant became the business unit manager.  He reported to Marc McAllister. 

3. It is the applicant’s case that, with the change of management, he was placed under unwarranted pressure at work, which caused him to develop an anxiety condition.  As a consequence, during 2015, the applicant was on extended periods of sick leave, which caused tensions in the managerial relationship between him and Mr McAllister. 

4. It is further Mr Spratt’s case that he complained about aspects of the respondent’s management of its business, particularly as it pertained to him personally.  Essentially, the applicant complains that he was harassed, bullied and discriminated against, at his work, by management, particularly Mr McAllister. 

5. On 1 October 2015, whilst on sick leave, Mr Spratt was summonsed to a meeting with Mr McAllister.  The purpose of the meeting was to discuss what was described as irregularities in the performance of Mr Spratt’s duties at Vulcan Steel.  These irregularities included:

   ·Irregular purchase of safety clothing and equipment; stationary; luggage; electrical goods; and computer and phone accessories;

   ·Fraudulent expense claims;

   ·Non-return of company property; and

   ·Conduct which resulted in damage to Vulcan’s reputation with its customers. 

6. Following the meeting and the provision, on 6 October 2015, of a detailed list of the allegations made against him, to which Mr Spratt responded, Mr Spratt was terminated from his employment, on 13 October 2015.  The basis of the termination conveyed to Mr Spratt was the respondent’s view that Mr Spratt had engaged in serious and wilful misconduct, in the form of fraud, theft and/or misuse of Vulcan Steel’s funds. 

7. The applicant denies the various allegations of misconduct against him.  It is his position that:

   “The respondent in purporting to terminate the Applicant did so under a veneer of jurisdiction for such decision and in light of its failure to acknowledge and deal with the Applicant’s work place rights.”[2]

   [2]  See Claim lodged 29 February 2016 at paragraph 49

8. In particular, the applicant claims that the respondent has taken adverse action against him because of his illness, in contravention of section 351 of the FWA and has recklessly made false or misleading representations about him, in contravention of section 345 of the Act. He claims compensation, for lost wages and damage to his reputation. He does not seek to be reinstated in his employment.

9. Chapter 3 of the FWA deals with the rights and responsibilities of employees and employers.  In particular, Part 3-1 deals with general protection, in respect of workplace rights.  It is Mr Spratt’s position that he has been dismissed, by the respondent, in contravention of a number of his workplace rights. 

10. Pursuant to section 365 of the Act the applicant applied to the Fair Work Commission to deal with the dispute between him and Vulcan Steel, following his dismissal.  On 22 January 2016 a deputy president of the Fair Work Commission certified as follows:

    “An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Mr Christian Spratt alleging he was dismissed by Vulcan Steel Pty Ltd T/A Vulcan Stainless in contravention of Part 3-1 of the Act.

    The Fair Work Commission conducted a conference to deal with the dispute on 20 January 2016.

    Pursuant to s.368 of the Act, the Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.”[3]

    [3]  Ibid – Certificate Under Section 368

11. The resulting certificate, issued under section 368 of the FWA, under the underlined heading Important Note, indicated that the time limit for an application to make a general protections court application to either this court or the Federal Court was fourteen days, unless the court extended the time for making such an application.

12. Mr Spratt, through his current solicitors, commenced these proceedings on 29 February 2016.  This is some twenty-three days outside of the prescribed period.  In his application, Mr Spratt seeks such an extension of time. 

13. In support of his application, Mr Spratt asserts that he had been unwell and so unable to attend upon his lawyer to provide detailed instructions with the time period applicable.  The respondent opposes the granting of such an extension.  These proceedings are directed to the resolution of this preliminary issue. 

The legal provisions applicable

1. Section 371(2) of the FWA provides that a general protections court application, which requires a certificate under section 369, must be made within fourteen days after the certificate is issued, or within such period as a court allows on an application made during or after those fourteen days. 

2. The section contains a note in the following terms:

   “For the purposes of subparagraph (a)(ii), in Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”

3. In Clarke v Service to Young Council Incorporated & Ors[4] White J described the note as “a useful reference by the Parliament, i.e. to assist readers in identifying matters which may bear on the exercise of a court’s discretion under the provision.”  Both parties in the current matter acknowledge that what was said in Brodie-Hanns is the starting point for the court’s deliberations. 

   [4]  See Clarke v Service to Young Council Incorporated & Ors [2013] FCA 1018

4. As such, counsel for each of the parties has addressed the various considerations outlined in the case.  In these circumstances, it is not necessary for me to consider formally whether the note is a part of the legislation or otherwise.  I approach it as a useful reference.

5. In Brodie-Hanns Marshall J summarised the principles applicable to a grant of an extension 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.

   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 respondent’s position

1. Vulcan Steel filed its response, to Mr Spratt’s application, on 11 March 2016.  Mr Spratt’s claim is contained in some fifty-seven paragraphs, to which are annexed correspondence between Mr McAllister and him, regarding some twenty-seven incidents of alleged misconduct, relating to impropriety in the workplace and to dishonesty in respect of company property.  Vulcan Steel stands by these allegations of misconduct.

2. As such, the respondent formally denies each of the claims made by Mr Spratt regarding adverse action in breach of the various workplace rights asserted.  Its position remains that it was justified to terminate Mr Spratt’s employment and that Mr Spratt and those advising him were well aware of the time limits applicable to bringing an application to the court, following the termination of his complaint, in the Fair Work Commission.

3. It is the respondent’s position that Mr Spratt was legally represented at the conference convened by the Fair Work Commission and thereafter had a reasonable opportunity to instruct his solicitor.  The respondent claims as follows:

   ·The applicant has had four solicitors, with each of whom the respondent’s solicitors have corresponded;

   ·Each of those solicitors was readily able to communicate with the respondent’s solicitor, as well as with the applicant himself;

   ·As such, the applicant’s alleged lack of access to transport and resulting difficulties in communicating face to face with his solicitor did not affect his ability to properly instruct him within the applicable time limit;

   ·In addition, the applicant has not provided evidence to show that his illness has affected his ability to provide instructions to his solicitor;

   ·The applicant has not raised any allegations that were not present in his application to the Fair Work Commission.[5]

   [5]  See response filed 11 March 2016 at paragraph 57

The applicable rules of court

1. The Federal Circuit Court Rules 2001 apply to these proceedings.  Rule 4.05 provides that, generally speaking, proceedings are commenced by the filing of an application, supported by an affidavit or, where appropriate the filing of a statement of claim or points of claim.  Each of these procedures envisages the provisions of a significant level of particularity in respect of the claim being pursued. 

2. However, idiosyncratic rules apply to the commencement of proceedings, before the court, in its Fair Work jurisdiction.  In particular, pursuant to rule 45.06, a claim relating to an allegation that an employee has been dismissed, in contravention of a general protection, is to be commenced by the completion of a prescribed form, which need not be accompanied by an affidavit. 

3. The form in question is relatively straight forward and requires the provision of the orders sought and the grounds which are relevant to the application.  An applicant is required to tick boxes and provide written details in respect of printed questions.

4. Counsel for the respondent, Mr Colgrave, characterises the procedure in question as being “relatively straight forward with fairly basic details required”, which is analogous to the initiating process in the Fair Work Commission.  Essentially, identical material, in short form, can be provided to the court to initiate a general protections application.

5. From Mr Colgrave’s perspective, the comparative simplicity of the process, provided by the applicable rules of court, underlines the significant level of expedition, which must be attached to general protection applications, such as the present matter.  The legislature intended them to be instituted quickly so that both employer and employee would know how matters stood between them following a conciliation in the Fair Work Commission.

The evidence of the applicant in support of the application for an extension of time

1. The applicant’s case is set out in an affidavit of his solicitor, David Moen, filed 26 April 2016.  Mr Moen deposes that he was instructed to act on behalf of Mr Spratt on 26 November 2015.  Accordingly, he was the solicitor of record, when the Fair Work Commission conducted its conference, on 22 January 2016, which resulted in the section 368 certificate being issued on 22 January 2016. 

2. Mr Moen accepts that there has been approximately a three week delay in the filing of the application.  He attributes this delay to health issues of the applicant and other professional commitments of himself, which prevented him attending on Mr Spratt. 

3. In particular, Mr Moen deposes that Mr Spratt was not able to attend several meetings scheduled with him to finalise the application and Mr Moen himself did not keep two further appointments with Mr Spratt, on 27 January 2016 and 4 February 2016, due to his own professional commitments. 

4. Mr Moen further deposes that, after speaking with the applicant, at the end of January and beginning of February 2016, he made the assessment that Mr Spratt was “unable to provide clear and proper instructions due [to] health issues and as such specific dates as scheduled had to be altered.”[6]

   [6]  See affidavit of Mr Moen at paragraph 9

5. It was Mr Moen’s view, after speaking with Mr Spratt’s medical advisors, that in the latter part of February, his client’s condition improved and he was able to give instructions and attend meetings as arranged.  Accordingly, it is Mr Moen’s submission that Mr Spratt instituted the applicable proceedings as quickly as his health and other circumstances permitted.

6. Finally, Mr Moen has deposed that, at relevant times, Mr Spratt had no income, as he had not been able to obtain social security benefits.  As such, he had not been able to keep his motor vehicle running and this had further precluded him from attending appointments with his solicitors.  In summary, Mr Moen deposes as follows:

   “It was as a result of the combination of inability to meet with the Applicant and obtain instructions and also, the health of the Applicant and impecunious position the Applicant has found himself in at the time and after the Certificate was issued and the required time frame for the filing of the Application began.

   Through no fault of his own the Applicant was also unable to meet at scheduled times as set out above with myself due to court and professional commitments.”[7]

   [7]  Ibid at paragraphs 12-13

7. Mr Moen has provided a bundle of medical documents, relating to Mr Spratt’s medical condition.  These have been provided without any detailed explanation.  However, the documents can be characterised as originating from the following persons:

   i)His general medical practitioner, Dr Retnaraja of the Trinity Medical Centre.  Dr Retnaraja has been treating the applicant since at least August of 2015. 

   ii)Dr Selvadurai, a medical practitioner, who examined Mr Spratt for the purposes of issuing workcover medical certificates.  On 10 February 2016 Dr Selvadurai certified the applicant as being unfit for work from 7 December 2015 to 13 April 2016 on the basis of an adjustment disorder.  A further workcover medical certificate was issued by Dr Selvadurai on 15 April 2016, certifying that Mr Spratt was unfit for work until 25 July 2016, again due to an adjustment disorder and additionally anxiety. 

   iii)Mr Kling, a clinical psychologist, to whom Mr Spratt was referred, in August 2015, in the context of suffering a generalised anxiety disorder and symptoms of depression. 

   iv)Dr Blakemore, a psychiatrist, who examined Mr Spratt, in a medico-legal context on 11 February 2016 and provided a medical assessment to his solicitor. 

8. To Dr Blakemore, Mr Spratt gave a history of having been emotionally affected by what he described as “completely false or contrived and frivolous complaints, financial mismanagement, which had caused him distress.”  Mr Spratt also described, to Dr Blakemore, feeling that he had been undermined at his work and falsely characterised as suffering from a bipolar illness. 

9. In the context of the history provided to him, Dr Blakemore diagnosed Mr Spratt as suffering from an adjustment disorder with depressed mood, which had been caused by the work related incidents described to him by Mr Spratt.  In Dr Blakemore’s opinion, Mr Spratt’s employment had contributed 100 percent to his psychiatric illness.

10. Mr Colgrave places significant emphasis on how Dr Blakemore described Mr Spratt, on 11 February 2016, which was approximately a week after the limitation period had concluded.  The description was as follows:

    “Mr Spratt presented neatly, casually, dressed in a greyish T-shirt, dark shorts, a solidly built man who was friendly, obliging, cooperative, speaking openly and in a good deal of detail about himself and his difficulties.  He gave his history speaking with feeling, emotion, with some emotional fragility, a mood of depression and of upset generally being sustained, in keeping with his history.  Mr Spratt was oriented, and alert enough and of good enough attention and concentration to give a clear enough account of himself.”

11. Dr Blakemore described the history given to him by Mr Spratt as being very detailed.  It is Mr Colgrave’s submission that the only inference, which can be drawn from this description of Mr Spratt and his apparent capacity to provide extensive details to Dr Blakemore is that Mr Spratt would have been well enough to instruct his solicitors, to lodge a simple application, pursuant to rule 45.06, within the legislative timeframe provided. 

12. Mr Kling consulted with Mr Spratt on 8 February 2016, again just a few days after the conclusion of the applicable limitation period.  On this occasion, Mr Kling noted that Mr Spratt informed him that his employment had been terminated and as a result, Mr Spratt was pursuing an unfair dismissal case.  In this context, Mr Kling indicated that Mr Spratt:

    “… reported an escalation of associated financial and personal stressors including potential foreclosure on his home.  In early 2016, Christian reported an unintentional overdose of prescription medication resulting in hospital presentation and ongoing support from adult mental health services.”

13. As previously indicated, Mr Kling has been treating Mr Spratt since mid-August of 2015 in the context of a generalised anxiety disorder with symptoms of depression.  As at 22 February 2016, Mr Kling noted that Mr Spratt was reporting severe symptoms of depression and extremely severe symptoms of anxiety and stress. 

14. Again, Mr Colgrave submits that Mr Kling’s description of the applicant is one of a person who was aware of his situation and so physically capable of commencing these proceedings in question, within the prescribed time limit, particularly given that it has not been asserted that Mr Spratt was incapable of reading the section 368 certificate or misunderstood its import.

Consideration

1. Mr Colgrave relies on Clarke v Service to Youth Council Incorporated & Ors, to which reference has already been made.  In this case White J declined to extend time for a general protections application, which was some fifteen weeks outside the prescribed fourteen day limitation period.  It was however a case in which the applicant concerned had sought a reinstatement of her employment and had earlier expressed some ambivalence as to whether she would pursue her general protections application.

2. In the case, his Honour made reference to the High Court’s decision in Brisbane South Regional Health Authority v Taylor[8] in which the court provides useful commentary on the legislative rationale for limitation periods in general and how courts, such as this one, should approach their application.  In the case, McHugh J (with whom Dawson J) agreed said as follows:

   “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. ... A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”

   [8]  See Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541

3. In the same case, Toohey and Gummow JJ said as follows:

   “The discretion ... is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.”

4. As is self-apparent, the legislature has fixed different limitation periods in respect of different cases.  In the particular matter, it is obviously germane that the applicable limitation period is a short one.  However, the legislation also recognised that individual considerations of justice dictate that the court should have a discretion to ameliorate the limitation period, in appropriate circumstances, where the interests of justice require it. 

5. The granting of the extension is a discretionary exercise.  The discretion is unfettered but it is to be exercised judicially by identifying matters relevant to the discretion in the particular case and weighing those matters against one another.[9] 

   [9]  See Milas v GM Holden Limited [2015] FCCA 1311 per Judge Sullivan

6. In general terms, the matters identified by Marshall J in Brodie-Hanns, as noted in the applicable section, provide the appropriate matters for reference, but are not the only matters, given the requirement that the court should provide individualised justice, as each case requires. 

a)     The length of the extension required

1. The applicant requires an extension of approximately twenty-three days.  This is approaching double the period stipulated for filing the relevant application.  However, in my view, it is not an inordinately lengthy period of time. 

2. In this particular case, the applicant alleges that the respondent has contravened the general protections contained in sections 340, 343(1), 344(c)(d)(e) and 351. These are all civil remedy provisions, which if established, may render the respondent liable to the imposition of a civil penalty.

3. In addition, pursuant to section 545(2) the court may make an order awarding compensation to Mr Spratt; order the reinstatement of his employment; or grant an injunction, either on a final or interim basis, to prevent or remedy the effects of the contravention against him. 

4. In this particular case, Mr Spratt does not seek either reinstatement or an injunction.  In this sense, the factual situation pertaining to this matter is significantly different to that in Clarke.  Ms Clarke was some fifteen weeks out of time and sought an order for the reinstatement of her employment.  White J noted that the longer an employee sat on his or rights, the more problematic it became for such an employee to be reinstated. 

5. It was factual scenarios of this kind, which his Honour considered had led the legislature to provide a short period of time in which to institute general protection applications, in this court, following unsuccessful conciliation in the Fair Work Commission.  White J said as follows:

   “… I consider that the observations in Taylor just quoted are pertinent in the present context. That is especially so given that one of the forms of relief sought by the present applicant is an order that her employment be reinstated. Generally, the longer the period from a termination, the more difficult reinstatement of employment will be. The relatively short limitation period of 14 days may be understood as a legislative recognition of that difficulty. The Parliament intends that applications under s 371 should be brought promptly so that the practical difficulties which an order for reinstatement can occasion may be minimised. In my opinion, this is an important consideration in relation to applications of the present kind.”[10]

   [10]  Supra at [8]

6. In my view, there are no such practical difficulties present in this case.  Mr Spratt seeks compensation in respect of what he asserts are his proper entitlements following the cessation of his employment with the respondent, on what he characterises as spurious or trumped up grounds.  He concedes that there are no prospects of him resuming an employment relationship with Vulcan Steel because neither party has any trust or respect for the other.  The workplace for each of the parties has clearly become poisonous from each of their perspectives.

7. Accordingly, to some extent, the legislature’s imprimatur for expedition is not strongly applicable to the circumstances of this case.  In my view, this is an important consideration, when the relatively modest extent of the limitation sought is considered. 

b)     The explanation for the delay

1. Mr Spratt relies on an interlocking set of circumstances to explain the delay – his ill health; his impecuniosity and the unavailability of his lawyer.  In this context, Mr Colgrave submits that it is not sufficient that Mr Spratt provides an explanation per se for the failure to file in time.   Rather the court must be satisfied that the explanation is correct, rather than one proffered or constructed to explain away the delay.  In this context, Mr Colgrave cautions against the court too readily accepting a dog ate my homework type of explanation. 

2. Essentially, Mr Colgrave asserts that Mr Spratt’s explanation has been engineered to explain his own subjective inaction and failure to heed the direction on the section 368 Certificate rather than explain why he was not able to lodge the application within the stipulated timeframe, particularly given that he does not contend that he was unaware of the limitation period in question. 

3. It is Mr Colgrave’s submission that the medical evidence available is insufficient to support Mr Spratt’s assertion that he was medically incapable of complying with the timeframe, particularly when the comparative simplicity of commencing the proceedings in question is considered.  Mr Spratt did not have to marshal any further material in addition to that which he had already provided to the Fair Work Commission. 

4. In particular, Mr Colgrave points to the material emanating from Dr Blakemore and Mr Kling, which indicates that Mr Spratt was capable of providing coherent details as to his various grievances in respect of Vulcan Steel, notwithstanding the fact that he had been diagnosed with various psychological disorders. 

5. Mr Colgrave submits that it is not sufficient for Mr Spratt to assert merely that he was psychologically unwell at the time the limitation period expired.  Rather what he must do is demonstrate that his condition was a material factor in preventing him from instituting the necessary proceedings, which Mr Colgrave asserts Mr Spratt has not done.

6. I accept that Mr Spratt has been psychologically unwell since mid-2015, when he consulted his general medical practitioner complaining of workplace bullying; being the subject of unreasonable expectations; and incorrectly characterised as suffering from a bipolar disorder.  At this stage, he was referred to Mr Kling.  He has also been certified, as unfit for work, for significant periods of time, since mid-2015. 

7. Accordingly, at relevant times, I am satisfied that Mr Spratt was unwell and had been for an extended period of time.  I concede that his level of infirmity did not preclude him from taking part in the conciliation processes before the Fair Work Commission and from attending upon both Dr Blakemore and Mr Kling.  However, neither Dr Blakemore nor Mr Kling has specifically addressed the issue of the possible implications, for Mr Spratt, regarding his capacity to be proactive, in his cause, given his psychiatric/psychological condition and how that condition waxed and waned. 

8. In general terms, I accept that Mr Spratt was unwell and, in these circumstances, it is not inherently improbable that this state of affairs would have implications regarding how readily he was able to pursue formally his grievances against his former employer, particularly in the absence of support from a professional person such as a lawyer. 

9. What is abundantly clear, from the medical material, is that Mr Spratt vehemently complained of his grievances, vis-à-vis Vulcan Steel, to his various medical advisors.  In this context, I am not persuaded that his illness now is proffered as some form of subterfuge to explain his inaction.  In my view, this is not a case of an applicant getting cold feet and then changing his/her mind, when it is too late. 

10. In this context, it is my view that I must closely consider Mr Spratt’s position that it was a coincidence of various species of disadvantage, which conspired to bring about the late filing of his application.  I accept that this was so. 

11. In isolation, the failure to obtain social security; the inability to access transport; and the conflicting professional responsibilities of Mr Moen; would not be sufficient to explain the delay but, in my assessment, in combination they are, particularly when superimposed upon Mr Spratt’s obvious ongoing levels of psychological disability, which are long-standing in the sense that they precede and succeed the limitation period in question.

12. Mr Colgrave asserts that it is not relevant that Mr Moen has not as yet been placed in funds regarding any application brought on Mr Spratt’s behalf.  I agree.  In addition he asserts that difficulties relating to Mr Moen’s professional commitments should be given little weight, given that the applicant’s case was essentially the same as that which was asserted in the Fair Work Commission.

13. That may be so, but Mr Spratt was entitled to seek advice in respect of his application and, as he has been legally represented throughout, it does not appear to me to be unreasonable that he would have wanted to consult with Mr Moen before taking any concrete action.  The evidence indicates that Mr Spratt had indeed made appointments to attend upon Mr Moen, which were not kept, due to no fault or omission on Mr Spratt’s part.  In my view, this is a factor, which favours Mr Spratt. 

c)     Prejudice

1. The respondent does not contend that it will suffer real prejudice as a consequence of the delay.  It remains in the same position as it would have been if the proceedings were commenced within time.  However, as Marshall J pointed out in Brodie-Hanns, the mere absence of such prejudice cannot be regarded as a sufficient basis to grant the extension sought. 

d)     The merits of the application

1. Mr Spratt asserts that the respondent has carefully constructed a case for dismissal, against him, to disguise its unlawful motivations.  Essentially, he asserts that the allegations of dishonesty relating to such things as the purchase of mobile phone chargers; the purchase of work shorts; and his borrowing of an industrial vacuum cleaner; are either frivolous or trumped up. 

2. On the other hand, the respondent asserts that it can establish each of the relevant allegations against Mr Spratt, which were the operative reasons for his dismissal, rather than his disability or the other protected reasons raised by Mr Spratt.  If the matter does proceed to adjudication, it will be necessary for the court to determine the operative reason for Mr Spratt’s dismissal.

3. In the circumstances of this preliminary hearing, I am unable to resolve these significant factual issues.  However, at this juncture, I am not in a position to find that Mr Spratt has no case to put forward or no reasonable prospects in pursuing that case.  I am satisfied that factual issue has been joined between the parties.

4. In other cases, relating to extension issues, it has been demonstrable that the applicant for an extension of time has no reasonable prospects of success.[11]  That is not the case in this matter. 

   [11]  See Owen v Cudeco Limited [2013] FCCA 1827 at [23] – [25]

e)   Fairness vis-à-vis the applicant and others

1. In this context, Mr Colgrave contends as follows:

   “Granting an extension of time to dilatory litigants provides an inferred unfairness to the great majority of litigants who observe time limitations and put themselves to the cost and potential inconvenience to meet such time limitations.  This can be a consideration for the Court.”

2. In my view, it would not be unfair to persons in a similar position to Mr Spratt, if the court’s discretion is exercised in Mr Spratt’s favour.  Individuals, who bring general protection proceedings analogous to those of Mr Spratt, within time, will not be prejudiced by the court extending time in this particular matter, particularly given the shortness of the delay involved, if the interests of justice and considerations of fairness dictate that it should be. 

Conclusions

1. I consider that, in all the circumstances of this case, Mr Spratt has provided an adequate explanation for the delay in the case, which is short.  He has consistently indicated his opposition to his dismissal by the respondent.  His application is one, which at least on its face, is arguable, and not so devoid of merit as to warrant a refusal to extend time.

2. Above all, in my view, it would be unfair to Mr Spratt, given his idiosyncratic circumstances, for the extension to be refused.  In my view, the interests of justice dictate that the extension should be granted.

3. I do not propose to make any order, as to costs, given the finely balanced nature of the matter.  The next step is for the matter to be listed for further directions, at which stage consideration will be given to whether the case is one suitable for mediation or whether it should be allocated a date for final hearing.

4. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:       20 May 2016