Federal Court of Australia
Hennessy v Barminco Limited  FCA 9
DATE OF ORDER:
THE COURT ORDERS THAT:
1. Pursuant to s 370 of the Fair Work Act 2009 (Cth), the time within which the Originating application in this proceeding be lodged is extended up to and including 22 November 2021.
2. Costs reserved.
3. The applicant have leave to amend the Originating application to the following effect: The heading on page 2, “Details of claim under the Fair Work Act”, be removed and in place thereof the words “Statement of Claim” appear.
1 This is an application under the Fair Work Act 2009 (Cth) (the FW Act) in which the applicant alleges that he was dismissed in contravention of a general protection provision by Barminco Limited. The application was preceded by an application to the Fair Work Commission (the FWC) for the FWC to deal with the dispute. That application was made under s 365 of the FW Act and involved an allegation made by the applicant that he had been dismissed by the respondent in contravention of Pt 3-1 of the FW Act. The FWC conducted a conference to deal with the dispute on 2 November 2021. By certificate dated 5 November 2021, and given pursuant to s 368(3)(a) of the FW Act, the FWC certified that it was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) had been unsuccessful.
2 The Originating application in this Court is dated 19 November 2021. The Notice of filing and hearing attached to the Originating application indicates that the document was lodged electronically in the Court on 19 November 2021 at 4:58:31 pm ACDT and had been accepted for filing under the Court’s Rules. 19 November 2021 was a Friday and it was the last day of the 14-day period prescribed in s 370 of the FW Act. The Notice of filing and hearing is itself dated 22 November 2021 9:53:30 am ACDT.
3 Rule 2.25 of the Federal Court Rules 2011 (Cth) relevantly provides:
(3) If a document is faxed or sent by electronic communication to a Registry, the document is, if accepted by a Registry under subrule (1), taken to have been filed:
(a) if the whole document is received by 4.30 pm on a business day for the Registry—on that day; or
(b) in any other case—on the next business day for the Registry.
Note 1: Business day is defined in the Dictionary.
Note 2: File is defined in the Dictionary as meaning file and serve.
Note 3: Because of the Court’s computer security firewall, there may be a delay between the time a document is sent by electronic communication and the time the document is received by the Court.
4 On the face of the documents, the applicant’s Originating application was not made within the 14-day period referred to in s 370 of the FW Act. The Court has a power under s 370 to extend the time for the making of the application.
5 The respondent applied by Interlocutory application dated 17 December 2021 for orders that the Originating application be dismissed on the basis that it was not made within the 14-day period prescribed by s 370 of the FW Act and no application for an extension of time had been made. In the alternative, the respondent seeks an order that the applicant be required to file a Statement of Claim within 28 days. The Originating application is accompanied by a 16-page document containing 47 paragraphs which is titled “Details of claim under the Fair Work Act”. The respondent’s point with respect to this document is that it is not a Statement of Claim or an alternative accompanying document under the Employment and Industrial Relations Practice Note (E&IR-1) (at para 4.2). The respondent’s Interlocutory application is supported by an affidavit of Renae Jade Harg affirmed on 16 December 2021.
6 The respondent’s Interlocutory application seems to have prompted the applicant to make an application for an extension of time. That application was filed on 13 January 2022 and is accompanied by an affidavit of the applicant’s solicitor, Robert Grealy, filed at the same time.
7 I made an order extending time and other orders and said that I would deliver reasons for doing so. These are the reasons.
8 On the face of the documents, the Originating application was lodged with the Court 28 minutes after the time prescribed by the Rules and is one day out of time.
9 The applicant’s explanation for the delay is given by Mr Grealy in his affidavit. Mr Grealy received the FWC certificate on 5 November 2021. The applicant’s application related to his employment by the respondent at premises located in Queensland and events which occurred in Queensland. On 19 November 2021, Mr Grealy instructed a law clerk employed by his firm to arrange for the applicant’s Originating application to be filed in this Court. Mr Grealy states that he has since discovered that in using an earlier Federal Court precedent to prepare the applicant’s Originating application, he failed to change the references in the footer to Mr Damien Walker, the applicant in an earlier Federal Court proceeding, and the reference to the Registry, being South Australia. Mr Grealy states that it was his intention that the applicant’s Originating application would be lodged with the Queensland Registry of the Federal Court. Mr Grealy states that on review of his firm’s relevant accounting records, he determined that the lodgement of the applicant’s Originating application was completed at 3.58 pm Brisbane time on 19 November 2021 when payment was made. He states that at 3.58 pm Brisbane time, it was 4.28 pm in Adelaide. He states that he believes that the lodgement was completed by the applicant prior to the closure of the South Australia Registry on 19 November 2021 such that the Originating application was lodged within the time prescribed by the FW Act.
10 I do not accept that the application was filed within time. Mr Grealy did not produce the accounting records to which he referred and there is no sufficient reason to doubt the accuracy of the Notice of filing and hearing. I am not confident Mr Grealy is able to provide a clear explanation as to when the document was filed for the foregoing reason and because at an earlier hearing, he seemed to suggest that the delay was due to difficulties with lodging documents through the online portal.
11 Mr Grealy’s submission in the event (as I find) that an extension of time is necessary is as follows. The application was only minutes late. The late lodgement was caused by his errors in the applicant’s Originating application and in failing to ensure that the applicant’s Originating application was lodged with the Queensland Registry. Had the latter occurred, the application would have been lodged well within time. He submitted that the respondent has demonstrated no prejudice that would be caused by the applicant missing the deadline by such a short time. He submitted that the respondent does not indicate that the applicant’s claims are not meritorious and, in his opinion, the applicant has demonstrated a prima facie case that needs to be tried on the merits.
12 The matters which are relevant to whether the time should be extended in circumstances such as the present are well known and are as follows: (1) the length of the delay; (2) the explanation for the delay; (3) to a limited extent (to be explained), the merits of the application; (4) the prejudice to the applicant if the application is not granted; (5) the prejudice to the respondent if the application is granted; and (6) any other public interest considerations.
13 The respondent concedes that it is unlikely to suffer prejudice “other than the usual prejudice of having to defend an out of time and meritless application”. It submits that the absence of prejudice is not a sufficient basis upon which to grant an extension of time.
14 The issues centred on the explanation for the delay and the merits of the application. The respondent pointed to the fact that the applicant’s evidence as to the explanation for the delay is unsatisfactory. That to a point is correct.
15 The other matter which was the focus of submissions was the merits of the application. The respondent asked me to conclude that the applicant’s application is without merit. It points to the fact that the applicant stated that he had a medical condition which meant that he was unable to wear a mask above ground. The applicant was required to work underground and wear masks and respirators and (the respondent contends) it directed the applicant to attend an independent medical examination in compliance with its health and safety obligations and to ensure the applicant could perform his role safely. The applicant refused and his employment was terminated for failure to follow a lawful and reasonable direction. The respondent contends that the applicant attempts to confuse the issues and that this application is not about COVID-19, COVID-19 control measures or COVID-19 vaccinations. It is about whether the applicant’s employment was terminated for the substantial and operative reason that he refused to follow a lawful and reasonable direction to attend an independent medical examination. The respondent contends that the refusal to attend the medical examination was the substantial and operative reason for the termination of the employment.
16 In my opinion, where the application is, in effect, 28 minutes “out of time”, the error is a solicitor’s error and there is no prejudice to the respondent if an extension of time is granted, the Court does not delve into the merits to any great extent. I have read the details of the claim under the FW Act and it seems to me that the merits may depend on the resolution of a number of factual issues, or issues of mixed fact and law. In those circumstances, I am not satisfied that the claim is obviously lacking in merit or untenable. Beyond that assessment, the merits do not bear upon whether an extension of time should be granted.
17 It seems to me that although the explanation for the delay is unsatisfactory, the insignificance of the delay and the prejudice to the applicant if time were not extended warranted an extension of time.
18 The other matter raised by the respondent in its application was cured at the hearing by the making of the following order:
6. The applicant have leave to amend the Originating application to the following effect: The heading on page 2, “Details of claim under the Fair Work Act”, be removed and in place thereof the words “Statement of Claim” appear.