Tan v Ikon Communications Pty Ltd

[2018] FCA 1240

FEDERAL COURT OF AUSTRALIA

Tan v Ikon Communications Pty Ltd [2018] FCA 1240

File number:	VID 508 of 2018
Judge:	NORTH J
Date of judgment:	6 August 2018
Legislation:	Fair Work Act 2009 (Cth) s 370
Date of hearing:	6 August 2018
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	No Catchwords
Number of paragraphs:	10
Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr B Avallone
Solicitor for the Respondent:	CIE Legal

ORDERS

VID 508 of 2018

BETWEEN:

ADRIAN TAN

Applicant

AND:

IKON COMMUNICATIONS PTY LTD

Respondent

JUDGE:	NORTH J
DATE OF ORDER:	6 AUGUST 2018

THE COURT ORDERS THAT:

1.The time within which the application might commence this proceeding is extended to 2 May 2018.

2.A case management hearing be fixed on a date to be advised.

3.By 27 August 2018, the respondent to file and serve its defence.

4.The matter is referred to mediation by a Registrar of the Court, such mediation to occur after 27 August 2018. The registrar to report the mediation to the Court by seven days prior to the date of the case management conference referred to in paragraph 2.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J:

1. The applicant, Adrian Tan applies for an extension of time to file a general protection application pursuant to s 370 of the Fair Work Act 2009 (Cth) (the Act). Under s 370(a)(ii) such an application must be filed within 14 days from the issue of a certificate by the Fair Work Commission (FWC), or within such period as the court allows on an application made during or after those 14 days. The certificate in this case was issued by the FWC on 23 January 2018. Consequently, the applicant had to file the application by 6 February 2018. The applicant says he received the certificate on 18 April 2018 and, consequently, filed within 14 days thereafter, namely, on 2 May 2018.

2. Two questions have been argued on the application.  Firstly, whether the applicant had made out a reasonable explanation for the delay and, secondly, whether the respondent would suffer prejudice were the extension of time permitted. 

3. As to the explanation for the delay, the applicant relied on two affidavits in which he deposed that he did not receive the certificate on 23 January 2018, but received it for the first time on 18 April 2018.  The applicant acknowledged that he knew that when making the affidavit he was liable to punishment for not telling the truth to the Court. The applicant was not cross-examined.

4. The respondent, Ikon Communications Pty Ltd, relied on affidavits sworn by Mark Waters, Sonia Claire Potter and Lisa Therese Panucci, as well as oral evidence given under subpoena from an officer of the FWC, Daniel Wursthorn.  That evidence established that the FWC had sent an email containing the certificate on 23 January 2018 to the email address of the applicant.

5. In order to rebut the applicant's case that he did not receive the email containing the certificate, the respondent had to prove on the balance of probabilities that the applicant did not receive the email. Whilst the evidence from the FWC records show the despatch of the email on 23 January 2018, that evidence does not demonstrate that the applicant received that email.  The evidence also established, and the applicant accepted, that he received a number of other emails from the FWC sent to the same email address before 23 January 2018.

6. The respondent relied on an inference to be drawn from evidence that the FWC sent the email in question and other emails to the applicant to the same address and all but the email in question were received by the applicant.  However, the applicant's sworn evidence that he did not receive the email should be accepted.  The applicant has established a reasonable explanation for failing to act within the time fixed for filing the general protection application. 

7. The second question is whether the respondent would suffer undue prejudice if an extension of time were granted. The respondent explained that a former managing director of the respondent, Sharon Cookson, will be called as a witness as part of its case.  She will be an important witness because of the role she played in the central events of the claim. Ms Cookson left the employment of the respondent on 21 March 2018, that is to say, after the time at which the general protection application should have been filed.  Ms Cookson had given notice on 21 December 2017 and was on gardening leave from 11 January 2018 until 21 March 2018 when her resignation took effect. She has now left and is employed by a competitor of the respondent. 

8. The respondent argued that it would be prejudiced if the extension of time were granted because, had the application been filed in time, Ms Cookson would have been available as an employee of the respondent to assist in the defence of its case.  Furthermore, Ms Cookson might now wish to claim privilege against self-incrimination on the basis that allegations are made against her include that she acted fraudulently.

9. In order to establish prejudice, it would have to be demonstrated that Ms Cookson would have cooperated prior to 21 March 2018 and now would only respond to a subpoena. At the date of the hearing, the respondent had not approached Ms Cookson to determine whether she would be prepared to cooperate in the formulation of a defence or not.  Further, it was not clear whether, prior to 21 March 2018, she would have been prepared to do so.  The evidence is silent as to the attitude Ms Cookson would have taken, both prior to 21 March 2018 and today on the question of assisting the respondent. 

10. The consequences to the respondent of the circumstance of Ms Cookson might well be inconvenient. However, even if the respondent were able to establish that there was a change in Ms Cookson’s position, that would not be sufficient to amount to a prejudice that would outweigh the entitlement of the applicant to proceed in circumstances where he did not receive the certificate when it was issued.

11. It follows that the time within which the applicant might commence this proceeding is extended until 2 May 2018.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       17 August 2018