Taj v Western Health
[2013] FCA 1226
FEDERAL COURT OF AUSTRALIA
Taj v Western Health [2013] FCA 1226
Citation: Taj v Western Health [2013] FCA 1226 Parties: DR SALAHUDDIN TAJ v WESTERN HEALTH and ST JOHN OF GOD HEALTH CARE INC File number: VID 1031 of 2013 Judge: BROMBERG J Date of judgment: 23 October 2013 Catchwords: INDUSTRIAL LAW – application for extension of time to commence proceeding – general protections court application – considerations for extending time under s 371(2) of the Fair Work Act 2009 (Cth) – whether applicant has provided acceptable explanation for the delay – extension of time granted. Legislation: Fair Work Act2009 (Cth) ss 340, 351, 352, 369, 371(2) Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Date of hearing: 23 October 2013 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 9 Solicitor for the Applicant: Ms P LaGreca of Taylor & Preston Lawyers Counsel for the First Respondent: Mr JRM Tracey Solicitor for the First Respondent: TressCox Lawyers Counsel for the Second Respondent: The second respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1031 of 2013
BETWEEN: DR SALAHUDDIN TAJ
ApplicantAND: WESTERN HEALTH
First RespondentST JOHN OF GOD HEALTH CARE INC
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
23 OCTOBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The time for the applicant to make an originating application under the Fair Work Act 2009 (Cth) alleging contravention of a general protection in relation to matters raised before the Fair Work Commission and the subject of a Certificate issued by that Commission dated 10 September 2013, be extended to 25 October 2013.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1031 of 2013
BETWEEN: DR SALAHUDDIN TAJ
ApplicantAND: WESTERN HEALTH
First RespondentST JOHN OF GOD HEALTH CARE INC
Second Respondent
JUDGE:
BROMBERG J
DATE:
23 OCTOBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant in this matter seeks to make a claim that the respondents engaged in adverse action against him, engaged in discrimination against him and also breached his employment contract. He does so in reliance upon ss 340, 351 and 352 of the Fair Work Act2009 (Cth) (“the FW Act”).
The originating application sought to be made by the applicant was filed on 27 September 2013. It is accepted that the applicant requires an extension of time within which to commence the proceeding because his application is a general protections court application which requires a certificate issued pursuant to s 369 of the FW Act. Such an application must be made within 14 days after such a certificate is issued or within such period as a court allows on an application made during or after those 14 days. Those requirements are specified by s 371(2) of the FW Act.
The applicant, by an interlocutory application filed on 18 October 2013, seeks an order that the time for filing of his originating application be extended. The applicant relies on the Court’s power to so extend the time for filing given in s 371(2) of the FW Act. The first respondent (Western Health) opposes the application. The second respondent (St John of God Health Care Inc) has not appeared.
A number of affidavits have been filed. I do not intend to refer to the detail of that material. The circumstances appear to me to be fairly straightforward. The extent of the delay in this case is three days. On any view, the extent of the delay is short. There is no suggestion of any prejudice to the respondents as a consequence of the delay. Nevertheless, it is incumbent upon the applicant to provide an acceptable explanation for the delay and the mere absence of prejudice to a respondent is not a sufficient basis for the grant of an extension of time.
Those principles to which I have just referred and other relevant principles are conveniently set out in the judgment of Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300. The principles there outlined are of course not exhaustive and at the end of the day, what the Court needs to assess is whether it would be just in all the circumstances to grant or refuse the application. I have come to the view that it would be just in all the circumstances to grant the application. I have come to that view for a number of reasons.
Firstly, and significantly, the length of delay was short. Secondly, there is no prejudice to the respondents which has arisen from the delay. Thirdly, whilst there is not sufficient material before me to properly analyse whether the applicant’s claim is meritorious, it is not suggested that the applicant’s claim is hopeless. The first respondent’s submission proceeds on the basis that it is accepted that the applicant’s case may be arguable. I do not place significant weight on that matter but it is a matter that I take into account. As to the need for the applicant to provide an acceptable explanation, the material before me suggests that the reason for the delay is in part due to a mistake made by the applicant and in part due to a failure by the applicant’s former solicitors.
Although the applicant was on notice as to the last day for making the application, the applicant was mistaken as to that last day and mistakenly gave the wrong date to his new solicitors. That mistake seems to have been compounded by the failure of the applicant’s former solicitors to provide the new solicitors the applicant’s complete file which they held. Largely, as a result of those two matters and despite due effort, the applicant’s new solicitors were not put in a position to properly appreciate the last day for the filing of the application, nor that that last day had in fact passed.
The first respondent says that the applicant has not done enough to explain his failure. Whilst I accept that some criticism can be made, it seems to me that the first respondent places too much emphasis on what it says the applicant has failed to do. The applicant put the matter in the hands of new solicitors. He did that with more than sufficient time for those solicitors to have lodged his application. He no doubt did that in the expectation that information required by the new solicitors would be provided by his former solicitors. He made a mistake as to a date. It might be said that he could have been more diligent. It is not the case that his mistake was a result of any mala fides or, in my view, any established recklessness on his part.
Taking into account the explanation given, the length of the delay, whether there is an arguable case, the extent of any prejudice to the respondent and lastly, whether the delay can be said to be intentional or contumelious, I have come to the view that it would be just in all of the circumstances to grant the application and I will make an order extending the time for the making of that application.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 21 November 2013
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