Federal Court of Australia

Jackson v WS Remedial Group (NSW) Pty Ltd [2026] FCA 968

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (the Act), the time for filing the originating application and the statement of claim be extended nunc pro tunc to the date on which those documents were filed.

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

REASONS FOR JUDGMENT

KENNETT J:

1    The parties have agreed that I should determine this application for an extension of time on the papers.

2    The applicant seeks a range of relief against the respondents under the Fair Work Act 2009 (Cth) (the FW Act), the Work Health and Safety Act 2011 (NSW) (the WHS Act) and in contract, in respect of what he alleges to be:

(a)    adverse action taken against him because of his exercise of workplace rights, in contravention of s 340 of the FW Act;

(b)    a significant change in his employment made without consultation, in breach of cl 37 of the Building and Construction General On-site Award 2020 (the Award) and therefore s 45 of the FW Act;

(c)    failure to calculate his accrued annual leave in accordance with an agreement between him and the third respondent, as (the applicant alleges) subsequently upheld by the first respondent, in contravention of ss 44, 61(2), 87(2) and 323 of the FW Act;

(d)    unlawful deductions from his accrued annual leave in breach of ss 88(1) and 323 of the FW Act;

(e)    breach of his contract of employment;

(f)    failure to give proper notice of termination in contravention of ss 117 and 323 of the FW Act and the contract of employment;

(g)    failure to pay amounts due to the applicant upon termination in contravention of cl 20.6 of the Award, National Employment Standards and ss 45 and 90 of the FW Act; and

(h)    contraventions of ss 104 and 109 of the WHS Act.

3    Most of these alleged contraventions are interrelated and arise out of an episode on 30 July 2025 in which (the applicant alleges) he was required to grind away a waterproof coating in a confined space and not supplied with adequate protective equipment.

4    On 1 September 2025, the applicant filed a general protections application in the Fair Work Commission (the FWC proceeding). On 30 October 2025 a private conciliation conference took place involving the applicant’s solicitors, the second respondent (on behalf of the respondents) and a deputy president of the Fair Work Commission (the Commission). The FWC proceeding was not resolved on that occasion and the Commission allowed the parties some additional time to attempt to resolve it. On 10 November 2025 the respondents notified the Commission that the FWC proceeding remained unresolved and the applicant, through his solicitors, notified the Commission that he concurred with that notice. On 11 November 2025 the Commission issued a certificate under s 368(3)(a) of the FW Act, stating its satisfaction that all reasonable steps to resolve the dispute (other than by arbitration) had been, or were likely to be, unsuccessful (the certificate).

5    Pursuant to s 370(a)(ii) of the FW Act, the applicant was entitled to file a general protections court application only if that application was filed:

within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days

6    It is not in dispute that the last day on which the applicant could file a general protections application without an order under s 370(a)(ii) was 25 November 2025.

7    The applicant’s originating application was lodged for filing, together with his statement of claim and genuine steps statement, on 26 November 2025.

8    The applicant’s solicitor received an email from the registry on 27 November 2025 informing him that the originating application was one day out of time and had not been accepted. The email continued: “In your application, please seek an order for extension of time”. The originating application was then amended so as to include a prayer seeking an extension of time and resubmitted on 27 November 2025. The coversheet (added by the registry) records the application as having been lodged on 26 November 2025 at 4:44:33 pm and accepted for filing on 27 November 2025 at 4:04:52 pm.

9    On 6 February 2026 a registrar made orders for the filing of written submissions and affidavits on the application for an extension of time. In addition to filing an affidavit and submissions (15 minutes after the expiry of the time permitted by the orders) the applicant, for reasons that are not clear, also filed an interlocutory application on 20 February 2026 seeking an extension of time even though an application to the same effect had been included in his originating application. This interlocutory application was unnecessary, and therefore (contrary to the respondents’ submissions) nothing turns on the time of its filing or the fact that its first prayer for relief sought an extension of time only to 26 November 2025.

10    The proceeding came before a registrar on 25 June 2026, when an order was made by consent that the extension of time application be determined on the papers by a judge. The proceeding was then allocated to my docket.

11    In the frequently cited case of Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 at 299-300 (Brodie-Hanns), Marshall J (sitting in what was then the Industrial Relations Court of Australia) summarised the principles relevant to determining an application for extension of time as follows.

Briefly stated the principles are:

1.    Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2.    Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

3.    Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4.    The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5.    The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6.    Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.

12    Brodie-Hanns arose under a provision of earlier legislation which was not on all fours with s 370 of the FW Act. However, the authorities on which Marshall J relied were not limited to cases dealing with that provision; and Brodie-Hanns is expressly referred to in a Note to s 370. It was for that reason described as “the root authority” in relation to extensions of time under s 370 by Logan J in Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829 at [46] (Kelly). In what follows, therefore, I will consider the application for an extension of time by reference to the factors listed in Brodie-Hanns.

13    Consideration of the extension of time application must be approached on the footing that the applicant was one day late in filing his originating application. The application that he lodged for filing on 26 November 2025 was properly not accepted in that form, because (as explained in Kelly at [34]-[45]) the conditions governing the invocation of the Court’s jurisdiction were not met. The originating application needed to be amended and re-submitted, which apparently was not done until 27 November. However, if the originating application in its original form had been lodged one day earlier, it would have been within time.

14    The explanation for the applicant’s delay is somewhat unclear. The affidavit of the applicant’s solicitor, Joseph Murphy, attributes the delay to a miscalculation of the relevant deadline by a junior solicitor working on the matter with him, who entered 26 November 2025 as the relevant date in a calendar invitation sent to senior practitioners. He deposes to this practitioner having had “some health challenges” affecting her work patterns, but does not explain what these were; nor is there any explanation of why the firm depended on a junior solicitor affected by such challenges to identify the last day for filing. However, it is not necessary to go into the details in order to understand that the originating application was filed out of time as a result of an error by the applicant’s solicitors as to when the limitation period expired. That obviously does not excuse the delay, but it distinguishes the case from one in which a party does nothing about invoking their rights until the time for doing so has passed.

15    The applicant had taken the available steps under the FW Act to contest the termination of his employment, and the other acts of which he complained, by commencing and pursuing the FWC proceeding. Mr Murphy deposes that, on 10 November 2025 (before the certificate had issued), the applicant had given instructions to his solicitors to prepare to commence a proceeding in this Court within the relevant time limit. He did not at any stage acquiesce in the decisions which he claims were unlawful. If a refusal to extend time would penalise a blameless applicant for the failings of their legal representatives, that is a factor that points towards granting the extension.

16    The respondents submit that they will suffer prejudice from the need to respond, in what is generally a no costs jurisdiction, to causes of action which they say are “prima facie unmeritorious and vexatious”. This submission, however, does not point to any prejudice occasioned by the applicant’s delay. It could hardly be contended that any such prejudice arises from a delay of one day on the applicant’s part.

17    The substantive merit of the applicant’s claims is, of course, relevant in its own right. In a case involving “lengthy and unexplained” delay, an extension is unlikely to be granted unless the substantive claim is “strong or even ‘exceptional’”: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). On the other hand, where (as here) the delay is minimal, considerations of fairness normally point to the grant of an extension unless the substantive case is hopeless or very weak.

18    Here, the applicant submits that his claims, as set out in the statement of claim, have “strong merits”. The respondents, on the other hand, submit that they have “strong grounds to successfully defend all aspects” of the applicant’s claims. However, neither side has yet filed any evidence on the substantive issues; nor have the respondents filed a defence. Nor has the respondent attempted to establish by reference to the contents of the statement of claim that any of the applicant’s claims are bad in law. The material filed in the FWC proceeding has not been put before the Court on this interlocutory application. Like White J in Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [34], therefore, I can do no more than accept that the applicant may have an arguable claim and that claim will be defeated if the extension of time is not granted.

19    Submissions have not been directed specifically to considerations of “fairness as between the applicant and other persons in a like position”. However, it is safe to proceed on the basis that parties who file their originating applications one or two days late (and whose proceedings are not clearly unmeritorious) are very often granted extension of time.

20    As to fairness between the parties, while no prejudice is occasioned to the respondents by a one day delay in filing the originating application, the result for the applicant of a refusal to grant the extension of time would be the loss of any ability to pursue his claims under the FW Act. For the applicant to be left with no recourse other than a potential claim in negligence against his solicitors (which, of course, might fail for reasons unconnected with the merits of his original claims against the respondents) would be an unsatisfactory outcome.

21    For these reasons the extension of time will be granted. The applicant did not seek the costs of the application.

Associate:

Dated:    22 July 2026

SCHEDULE OF PARTIES