Stephens v Australian Postal Corporation - [2010] FMCA 1012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEPHENS v AUSTRALIAN POSTAL CORPORATION

[2010] FMCA 1012

INDUSTRIAL LAW – General protections court application – 14 day time limit after FWA certificate – power to extend – relevant considerations – short delay by legal representative in giving advice – no prejudice to employer – extension granted.

Fair Work Act 2009 (Cth), ss.360, 361, 370(2), 371(1), 371(2), 544, Pt.3‑1

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Brodie‑Hanns v MTV Publishing Limited (1995) 67 IR 298
Comcare v A’Hearn (1993) 45 FCR 441
Coyne v Ansett Transport Industries [1996] IRCA 468
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Applicant:

LARRY STEPHENS

Respondent:

AUSTRALIAN POSTAL CORPORATION

File Number:

SYG 1429 of 2010

Judgment of:

Smith FM

Hearing date:

15 December 2010

Delivered at:

Sydney

Delivered on:

15 December 2010

REPRESENTATION

Counsel for the Applicant:

Ms J Keys

Counsel for the Respondent:

Mr S Meehan

ORDERS

The time for making the application provided by s.371(2) of the Fair Work Act 2009 (Cth) is extended up to and including 29 June 2010.
The applicant must file and serve all additional affidavits and any bundle of documents relied upon no later than 21 January 2011.
The respondent must file and serve any additional affidavits in reply no later than 18 February 2011.
The applicant must file and serve any affidavits in reply no later than 11 March 2011.
The parties have leave to request the issue of more than 5 subpoenas. All subpoenas to produce documents to the Court prior to the hearing shall adopt the second option in the approved form of subpoena, striking out the words “give evidence and” in that option and inserting the words “You do not need to attend, if you deliver or send this subpoena or a copy of it and the documents or things specified in the Schedule to the Registry 2 clear days prior to that date” in Part B. All subpoenas are to be made returnable before a Registrar at a time and place inserted by the Registry in Part B.
The parties may file and serve on another party a notice to produce documents at a listing before a Registrar on a date appointed by the Registry.
The previous referral to mediation is vacated.
Any party may request that the proceeding be listed for further directions or for the hearing of an interlocutory application on a date allowing 5 working days notice to the other parties. The appointment shall be obtained from the Associate on 9377 5528.
The parties must give notice of the deponents to affidavits who are required for cross‑examination on or before 3 May 2011.
The parties must file and serve objections to the other parties’ affidavits before 4pm on 13 May 2011.
The parties must file and serve their list of authorities and any written submissions by way of opening before 4pm on 13 May 2011.
The proceeding is listed for hearing on 17 May 2011, 3 days allowed.

FEDERAL MAGISTRATES
COURT…

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.

Keep reading for free

Create a free CaseChat account to read Stephens v Australian Postal Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FMCA 1012
Decision Date: 15 December 2010

CaseChat Overview and Summary

In the case of Stephens v Australian Postal Corporation, the applicant sought an extension of time to file an application under the Fair Work Act 2009 (Cth). The respondent opposed the application, arguing that the applicant had not demonstrated any special circumstances warranting an extension of time. The court had to decide whether the applicant had shown special circumstances that warranted an extension of the time limit for filing the application. The court also had to consider whether the extension would cause any undue delay or prejudice to the respondent.

The court held that the applicant had demonstrated special circumstances warranting an extension of time. The applicant had not filed the application within the prescribed time limit due to unforeseen circumstances, which were beyond their control. The court found that the extension would not cause any undue delay or prejudice to the respondent, as the respondent had not demonstrated any prejudice or hardship caused by the extension. The court also considered the public interest in ensuring that the applicant had an opportunity to seek redress for their grievances. The court concluded that the applicant had satisfied the criteria for an extension of time under section 371(2) of the Fair Work Act 2009 (Cth).

The court granted the applicant's application for an extension of time to file the application. The court ordered that the time for making the application be extended up to and including 29 June 2010. The court also ordered that the applicant must file and serve all additional affidavits and any bundle of documents relied upon no later than 21 January 2011. The respondent must file and serve any additional affidavits in reply no later than 18 February 2011, and the applicant must file and serve any affidavits in reply no later than 11 March 2011. The court also made several other orders, including allowing the parties to request the issue of more than 5 subpoenas, permitting the parties to file and serve a notice to produce documents at a listing before a Registrar, and listing the proceeding for hearing on 17 May 2011. The court vacated the previous referral to mediation and allowed any party to request that the proceeding be listed for further directions or for the hearing of an interlocutory application on a date allowing 5 working days notice to the other parties. The parties were also required to give notice of the deponents to affidavits who are required for cross-examination on or before 3 May 2011, and to file and serve objections to the other parties’ affidavits and their list of authorities and any written submissions by way of opening before 4pm on 13 May 2011.

Orders

Orders of the court

The time for making the application provided by s.371(2) of the Fair Work Act 2009 (Cth) is extended up to and including 29 June 2010.

The applicant must file and serve all additional affidavits and any bundle of documents relied upon no later than 21 January 2011.

The respondent must file and serve any additional affidavits in reply no later than 18 February 2011.

The applicant must file and serve any affidavits in reply no later than 11 March 2011.

The parties have leave to request the issue of more than 5 subpoenas. All subpoenas to produce documents to the Court prior to the hearing shall adopt the second option in the approved form of subpoena, striking out the words “give evidence and” in that option and inserting the words “You do not need to attend, if you deliver or send this subpoena or a copy of it and the documents or things specified in the Schedule to the Registry 2 clear days prior to that date” in Part B. All subpoenas are to be made returnable before a Registrar at a time and place inserted by the Registry in Part B.

The parties may file and serve on another party a notice to produce documents at a listing before a Registrar on a date appointed by the Registry.

The previous referral to mediation is vacated.

Any party may request that the proceeding be listed for further directions or for the hearing of an interlocutory application on a date allowing 5 working days notice to the other parties. The appointment shall be obtained from the Associate on 9377 5528.

The parties must give notice of the deponents to affidavits who are required for cross‑examination on or before 3 May 2011.

10.

The parties must file and serve objections to the other parties’ affidavits before 4pm on 13 May 2011.

11.

The parties must file and serve their list of authorities and any written submissions by way of opening before 4pm on 13 May 2011.

12.

The proceeding is listed for hearing on 17 May 2011, 3 days allowed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.