Stephens v Australian Postal Corporation

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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

  1. 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.

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

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

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

  5. 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.

  6. 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.

  7. The previous referral to mediation is vacated. 

  8. 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. 

  9. 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.

FEDERAL MAGISTRATES
COURT…
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Details
Case
[2010] FMCA 1012
Decision Date

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

1.

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.

2.

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

3.

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

4.

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

5.

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.

6.

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.

7.

The previous referral to mediation is vacated.

8.

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.

9.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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