Federal Court of Australia

Blade v Jones Lang LaSalle (NSW) Pty Ltd [2026] FCA 1183

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth),

(a)    the period in which a general protections court application can be made by the first applicant be extended to 10 December 2025; and

(b)    the period in which a general protections court application can be made by the second applicant be extended to the date which is seven days after the publication of reasons for judgment.

2.    Leave be granted to the first applicant, nunc pro tunc, to file the amended originating application dated 8 December 2025.

3.    Leave be granted to the first and second applicants to file the further amended originating application dated 30 June 2026 and a further amended statement of claim in the form of the amended statement of claim lodged for filing on 8 December 2025, by no later than 28 August 2026.

4.    The costs of and incidental to the hearing of the interlocutory application filed on 29 June 2026 (interlocutory application) be reserved, subject to any application for costs made pursuant to Order 5 of these orders, and the interlocutory application otherwise be dismissed.

5.    Any application for the costs of and incidental to the hearing of the interlocutory application is to be filed and served by 4.30 pm on 2 September 2026.

6.    The proceeding be listed for a case management hearing at 9.00 am on 4 September 2026.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    By an interlocutory application filed on 29 June 2026, the applicants, Peter Blade and Gregory Pike, seek orders including orders pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (FW Act) to permit each of them to advance a wrongful dismissal general protections court application in this proceeding. The respondent, Jones Lang LaSalle (NSW) Pty Ltd (JLL) substantively consents to the application made by Mr Blade but opposes the application made by Mr Pike.

2    The central issue to be determined in this case is whether the Court should exercise its discretion pursuant to s 370(a)(ii) of the FW Act to extend the time for Mr Pike to advance a general protections court application wrongful dismissal claim in this proceeding, in circumstances where an application had been filed contrary to s 370(a) of the FW Act, and there was then a considerable delay before steps were taken by Mr Pike to seek any extension of time pursuant to s 370(a)(ii) of the FW Act.

3    Mr Pike’s application for orders to permit him to advance a wrongful dismissal general protections court application is supported by four affidavits affirmed by his solicitor, Victoria-Jane Otavski.

4    JLL did not rely on any affidavit evidence in support of their opposition to Mr Pike’s application.

5    The applications made by Mr Pike and Mr Blade were first listed for hearing on 24 July 2026 but were adjourned to 13 August 2026 to allow the applicants to respond to a notice to produce served by JLL on the day before the hearing, seeking documents being the “written instructions” from Mr Pike referred to by Ms Otavski in para 19(d) of her affidavit sworn on 23 July 2026 (first notice to produce). On 24 July 2026, JLL served a further notice to produce on the applicants, seeking copies of documents being or recording communications or conversations referred to by Ms Otavski in paras 19(a)-(c) of her 23 July 2026 affidavit (second notice to produce).

6    The applicants variously contend that (a) the applicants had already made valid wrongful dismissal general protections court applications, (b) the Court could grant leave to amend the existing or proposed pleadings for them to take effect from a different date, or (c) the Court should exercise its discretion pursuant to s 370(a)(ii) of the FW Act to extend the time for the wrongful dismissal general protections court applications to be made.

7    For the reasons that follow, only the third contention of the applicants, set out at [6(c)] above, has substance, and in the somewhat peculiar circumstances of this case, I have concluded that I should exercise the discretion in s 370(a)(ii) of the FW Act to extend the time by which both Mr Pike and Mr Blade are to be permitted to make wrongful dismissal general protections court applications in the proceeding.

B.    Salient facts

8    On 12 October 2025, JLL terminated the employment of Mr Pike and Mr Blade with immediate effect.

9    On 13 October 2025, the applicants commenced this proceeding by filing an originating application (OA) and a statement of claim (SOC).

10    On the same day, Mr Pike and Mr Blade each made applications to the Fair Work Commission (FWC) by filing a Form F8 – General Protections application involving dismissal (together, FWC Applications). The attachments to Mr Pike’s FWC Application included an expanded version of the SOC that included claims that had not been pleaded in the original SOC. These claims were that JLL had taken adverse action within the meaning of s 342 of the FW Act against Mr Pike by terminating his employment in contravention of s 340 of the FW Act because he had exercised various workplace rights.

11    On 21 October 2025, JLL’s solicitors, Herbert Smith Freehills Kramer (HSFK) wrote to Ms Otavski stating that (a) no certificate had been issued by the FWC under s 368(3)(a) of the FW Act in respect of the FWC Applications (Certificate), and (b) s 370 of the FW Act prohibited a person from making a general protections court application unless a Certificate had been issued by the FWC, and the general protections court application was made within 14 days after the day the Certificate had been issued, or such further period as the Court allows following a general protections court application made within or after that period of 14 days.

12    The letter from HSFK appears to have been written on the mistaken premise that the SOC included claims that JLL had taken adverse action within the meaning of s 342 of the FW Act against Mr Pike by terminating his employment in contravention of s 340 of the FW Act because he had exercised various workplace rights. HSFK stated in their letter that JLL had received a request from the FWC for a contact point for Mr Pike’s FWC Application and it anticipated that “the material the FWC seeks to provide” to JLL was “in identical terms to the Form F8 you provided to us on 13 October 2025 – which annexed the Statement of Claim referred to above”, being the SOC.

13    On 27 October 2025, HSFK wrote to Ms Otavski noting this proceeding had been listed for a first case management hearing on 31 October 2025 and requesting that Ms Otavski provide a response to their 21 October 2025 letter.

14    On 29 October 2025, Ms Otavski responded to HSFK stating that (a) a Certificate was only required if a dismissal in contravention of Part 3-1 of the FW Act was alleged in the proceeding, (b) given the SOC did not contain an allegation of dismissal in contravention of Part 3-1 of the FW Act, no Certificate was required, and (c) if the FWC Applications did not resolve following conciliation, the applicants would seek leave to amend the SOC to include allegations of dismissal in contravention of Part 3-1 of the FW Act.

15    The first case management hearing in this proceeding listed on 29 October 2025 was vacated by consent, as the parties had agreed to have the proceeding stood over pending the resolution of the FWC Applications.

16    On 20 November 2025, an unsuccessful conciliation conference was held in respect of Mr Blade’s FWC Application.

17    On 24 November 2025, the FWC issued a Certificate in respect of Mr Blade (Blade Certificate).

18    On 2 December 2025, an unsuccessful conciliation conference was held in respect of Mr Pike’s FWC Application.

19    On 8 December 2025, the applicants lodged for filing an amended originating application, an amended statement of claim, the Blade Certificate and, in error, a Form 2 – Claim under the FW Act alleging dismissal in contravention of a general protection (Form 2). On 9 December 2025, the Registry rejected the lodgement of these documents because Form 2 is a Federal Circuit and Family Court of Australia, Division 2 form that cannot be accepted for filing in this Court.

20    On 10 December 2025, the applicants filed, but did not serve, an Amended Originating Application (AOA) and an Amended Statement of Claim (ASOC). The ASOC included new allegations that the dismissal of Mr Pike and Mr Blade by JLL was adverse action in contravention of s 340 of the FW Act: at [94], [96] to [99].

21    On 5 January 2026, the FWC issued a Certificate in respect of Mr Pike (Pike Certificate).

22    On 19 January 2026, the Pike Certificate was filed in this Court.

23    On 2 March 2026, HSFK wrote to Ms Otavski noting that the Commonwealth Courts Portal indicated that an “amended SOC and Originating Application” had been filed on 10 December 2025, and the Pike Certificate had been filed on 19 January 2026. HSFK confirmed that as at the date of their letter, JLL had not been served with the ASOC or AOA. HSFK further stated in their letter that (a) no leave had been sought to amend the OA contrary to r 8.21(1) of the Federal Court Rules 2011 (Cth) (Rules), (b) JLL had not been served with a copy of the ASOC or the AOA as soon as practicable after the amendment was made, contrary to r 8.25 and r 16.60 of the Rules, (c) the AOA was not accompanied by the Blade Certificate and the Pike Certificate, (d) the AOA was filed 16 days after the Blade Certificate was issued, and no application had been made to the Court to allow for any extension of time, and (e) the AOA was filed 26 days before the Pike Certificate was issued.

24    HSFK then stated in their letter:

Our client considers that there are serious deficiencies with the Federal Court Proceedings and those matters are liable to be struck out.

Our client intends to approach the Court, in accordance with the Orders, to have the matter called on before his Honour as soon as practicable. Before doing so, our client invites you provide your clients’ substantive response to these matters by 12pm on Friday, 6 March 2026.

25    On 10 March 2026, Ms Otavski responded to HSFK’s 2 March 2026 letter. Ms Otavski stated in her letter that there were “no jurisdictional deficiencies warranting either the attention of the Court, no prejudice as [sic] been suffered and your client should file its Defence”. She provided the following more substantive response to the specific claims raised by HSFK in respect of Mr Pike:

7.    It is acknowledged that the Amended Originating Application was filed on 10 December 2025, prior to the issue of the section 368 certificate in the Pike FWC Proceedings (C2025/10299) (Pike Certificate). The Pike Certificate was issued on 5 January 2026 and filed with the Court on 19 January 2026, plainly within 14 days of its issue and within time under section 370(a) of the FW Act. The circumstances are unexceptional. Mr Blade and Mr Pike are co-applicants to the same proceedings. The decision to file a single consolidated Amended Statement of Claim (rather than stagger amendments and cause the parties to incur duplicated costs) was made in circumstances where your client had been on notice of the proposed pleadings since October 2025 by virtue of the Statements of Claim annexed to each Fair Work Commission application filed and served individually on behalf of both Applicants.

8.     Moreover, any technical irregularity arising from the pre-certificate filing was cured upon the issue and timely filing of the Pike Certificate. The Amended Statement of Claim in respect of Mr Pike reflects, with no material difference, the version of the Statement of Claim annexed to his FWC application (C2025/10299), which as set out above, was in your client’s possession from October 2025.

26    Ms Otavski concluded her 10 March 2026 letter by requesting a confirmation that JLL would file its defence within 28 days and, if such confirmation was not provided, Mr Blade and Mr Pike would file an application supported by affidavit evidence setting out the chronological history that she had set out earlier in her letter.

27    On 18 March 2026, HSFK responded to Ms Otavski’s 10 March 2026 letter. HSFK, relevantly in respect of Mr Pike, stated that by reason of s 370 of the FW Act and r 34.03 of the Rules, he needed to have filed an originating application “in accordance with Form 79 accompanied by the section 368(3)(a) certificate between 5 January 2026 and 19 January 2026”, but he had failed to do that. Given those matters, HSFK requested an explanation from Ms Otavski as to how, relevantly in respect of Mr Pike, he considered that the AOA complied with r 8.21(1), r 34.03(1) and 34.03(3) of the Rules and s 370 of the FW Act.

28    Ms Otavski did not respond to HSFK’s 18 March 2026 letter.

29    On 12 May 2026, HSFK wrote to Ms Otavski in relation to the current status of this proceeding and attached a 75-paragraph request for particulars of the ASOC. HSFK provided the following commentary on the “jurisdictional issues” that had arisen in the proceeding:

While it was appropriate to have the Federal Court Proceedings stood over to let the FWC Proceedings run their course, it has now been four (4) months since the resolution of the FWC Proceedings (without success), and your clients have not taken any steps to prosecute their claim against our client nor attempt to address our client’s concerns in a meaningful way. Our client considers it is time for the Federal Court Proceedings to be dealt with so that our client does not continue to bear the burden of unresolved litigation.

To do so, our client considers it appropriate to have the matter called back before his Honour as soon as practicable. In doing so, our client intends to ask his Honour to deal with the jurisdictional issues raised including whether the proceedings can be regularised. Our client reserves their rights.

30    On 26 May 2026, Ms Otavski responded to the HSFK’s 12 May 2026 letter. In her letter, Ms Otavski stated that (a) the “jurisdictional concerns raised” in HSFK’s 2 March 2026 letter “were addressed in detail” in her letter of 10 March 2026, and (b) nothing in HSFK’s 12 May 2026 letter or the earlier 18 March 2026 letter “requires any modification of the position” set out by her in her 10 March 2026 letter. Ms Otavski concluded her letter by inviting HSFK to confirm that JLL would file its defence within 28 days or bring the jurisdictional challenge application that it had foreshowed in their 12 May 2026 letter. She then stated that in the absence of any response, Mr Blade and Mr Pike would bring their own application for directions, including the filing of a defence by JLL, the issuing of subpoenas and the conduct of a mediation.

31    On 29 May 2026, Ms Otavski provided HSFK with a response to the request for particulars of the ASOC made in HSFK’s 12 May 2026 letter.

32    Later that day, HSFK advised Ms Otavski that JLL considered that it was premature to file any defence until the jurisdictional issues had been resolved and stated that it had been instructed to relist the matter to do so.

33    On 29 June 2026, the applicants filed an interlocutory application which sought an order granting them leave to file a further amended originating application to advance the wrongful dismissal general protections court applications.

C.    Principles

34    Section 370 of the FW Act provides:

370    Taking a dismissal dispute to court

A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a)    both of the following apply:

(i)    the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii)    the general protections court application is made within 14 days after the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b)    the general protections court application includes an application for an interim injunction.

35    Section 368(4) of the FW Act relevantly provides that a “general protections court application” is:

…an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

36    Only s 370(a) of the FW Act is relevant. The general protections court applications do not include an application for an interim injunction.

37    The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300. In Brodie-Hanns, Marshall J summarised the principles applicable to the grant of an extension of time under the similarly worded then s 170EA of the Industrial Relations Act 1988 (Cth) as follows at 299-300:

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.

38    These principles have been applied in many subsequent cases, although White J observed in Clarke v Service to Youth Council Inc [2013] FCA 1018 at [7] that Brodie-Hanns was decided prior to the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25. In that case, after reviewing the rationale for limitation periods, McHugh J (with whom Dawson J agreed) said (at 553):

A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.

Toohey and Gummow JJ said (at 547):

The discretion … is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour.

There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.

(Citation omitted.)

39    Depending on the circumstances, errors by a legal representative may be a sufficient reason to extend the time within which an application for relief may be made. In Comcare v A’Hearn (1993) 45 FCR 441, a Full Court of this Court at 443 (Black CJ, Gray and Burchett JJ) found that the primary judge correctly concluded that the Administrative Appeals Tribunal had erred in law by finding that an inexcusable delay on the part of a solicitor could not constitute an acceptable explanation for a delay in an applicant making an application for a review of a decision by Comcare in refusing a claim made under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth). Their Honours observed at 443-444:

A consistent thread thus revealed in the reasoning is that the tribunal considered that delays by a solicitor were to be visited upon a client. Thus, despite the inexcusable delay on the solicitors’ part that the tribunal found, it was able to say that there was “no acceptable explanation whatsoever” for the delay. This approach cannot stand in the light of modern authorities such as Jess v Scott (1986) 12 FCR 187; see also Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 32 FCR 148 at 156.

In our view, therefore, the primary judge was correct in concluding that the Tribunal’s reasons did reveal an error of law and he was correct in deciding that the matter ought to be remitted to the Tribunal for further consideration according to law.

40    The Full Court in Comcare v A’Hearn also stated that while an acceptable explanation for a delay would normally be required, there was no inflexible rule that such an explanation was necessary for an exercise of a discretion to grant an extension. Their Honours observed at 444:

We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition: see Dix v Crimes Compensation Tribunal [1993] 1 VR 297 at 302 per Brooking J, with whom Fullagar and Tadgell JJ agreed; cf Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 and Maric v Comcare (1993) 40 FCR 244 at 247-249.

41    In Clark v Ringwood Private Hospital (1997) 74 IR 413, the Australian Industrial Relations Commission was considering whether to exercise its discretion pursuant to then s 170CE (8) of the Workplace Relations Act 1996 (Cth) to extend the time limit within which an application for relief in respect of a termination of employment must be lodged. The Commission stated that a distinction needed to be drawn between “delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant” (at 419). The Commission then observed (at 419-420):

The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of his/her representative and took no steps to inquire as to the status of his/her claim. A different situation exists where an applicant gives clear instructions to his/her representatives to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

d.    Two threshold contentions advanced by the applicants

D.1.    Has Mr Pike made a valid application for wrongful dismissal?

42    The applicants contend that by the time the Pike Certificate was filed with the Court at 2.16 pm on 19 January 2026, “everything s 370(a) requires existed and was on the Court’s file”. They submit that “[i]n substance, the filing on 19 January 2026 completed the making of Mr Pike’s application: it supplied, within time, the one element the December [2025] pleading lacked”. They submit that JLL “can point to nothing that turns on the form of the January 2026 filing”.

43    The applicants’ contention has a superficial attraction but is misconceived for the following reasons.

44    First, s 370(a) of the FW Act makes plain that a person who is entitled to apply under s 365 to make a wrongful dismissal claim “must not” make a “general protections court application” prior to the issue of the Certificate, meaning Mr Pike was not entitled to make a general protections court application in respect of his dismissal claims, and the Court lacked jurisdiction to determine any such purported application: Gao v Tin (Staffing Services) Pty Ltd [2020] FCA 453 at [21]; Ward v St Catherine’s School [2016] FCA 790 at [5]-[7]. As submitted by JLL, those paragraphs of the ASOC that advance dismissal claims for Mr Pike must be considered a nullity and cannot be relied on by Mr Pike to advance a s 370(a) claim.

45    Second, the filing of the Pike Certificate on 19 January 2026 could not satisfy the requirements of s 370 of the FW Act because it was not accompanied by any application for orders in relation to a contravention of Part 3-1 of the FW Act. In the absence of such an application, it was not a “general protections court application” within the meaning of s 368(4) of the FW Act.

D.2.    Can leave to amend be granted, with effect from 19 January 2026?

46    The applicants submit that the usual position that an amendment takes effect from the commencement of a proceeding is only “the assumption underlying r 8.21”, and the Court has “ample power to frame orders” under rules 1.32 to 1.35 of the Rules to fix the date from which an amendment takes effect, citing Australian Competition and Consumer Commission v BlueScope Steel Limited (No 2) [2020] FCA 625 at [22], [34], [35] (O’Bryan J).

47    Next, the applicants submit that the Court can and should order that the dismissal claims raised in the AOA take effect from 19 January 2026 or, alternatively, order that the dismissal claims raised in the further amended originating application lodged for filing on 30 June 2026 (FAOA) take effect from 19 January 2026. They submit that in either case, a general protections court application would then have been made within the 14-day s 370(a)(ii) period from the issue of the Pike Certificate.

48    Further, the applicants submit that the principles governing amendments enunciated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [111] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) all point in favour of making such orders, given the proceeding is at an early stage, no defence has been filed, the amendment was foreshadowed as early as 29 October 2025, and it would lead to no relevant prejudice or wasted costs.

49    The reliance by the applicants on r 8.21 of the Rules is misplaced. As submitted by JLL, it appears to assume that leave can be given under r 8.21 of the Rules to do something that is not permitted by s 370 of the FW Act. No authority is cited in support of such a bold proposition. Moreover, as Logan J stated in Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829 in addressing s 370(a) of the FW Act, it is necessary to distinguish between limitations and conditions on the exercise of a power. His Honour observed at [41]-[44] that s 370(a) does not contain mere limitations, but conditions in respect of the Court’s jurisdiction:

So it is that, at the very least, this Court in this proceeding has jurisdiction to determine whether or not it has federal jurisdiction at all. The point for the Diocese is that the conditions found in s 370(a) of the FWA are not just limitations. If they were but limitations, it may be that because this Court is a superior court, those limitations would bar a particular remedy but not go to jurisdiction. In Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 (Parisienne Basket Shoes), at 391, Dixon J added a qualification in these terms:

It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid.

The Diocese’s submission is that the Parliament has in s 370, as Dixon J in Parisienne Basket Shoes, contemplated might occur, made conditions upon the occurrence or existence of which the jurisdiction of this court shall depend in relation to a proceeding which constitutes a general protections court application. Also relevant in this regard is this statement in Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404, at 426:

Where jurisdiction depends on particular facts or a particular state of affairs, a challenge to jurisdiction can only be resisted by establishing the facts on which it depends. And, of course, they must be established on the balance of probabilities in the light of all the evidence advanced in the proceedings held to determine whether there is jurisdiction.

Here, it is established, indeed, it is common ground, that a certificate under s 368(3)(a) was issued by the Industrial Commission in relation to a dispute in respect of which the applicants were entitled under s 365 of the FWA to apply to the Industrial Commission. It is also established, indeed, it is again common ground, that no application was made within 14 days after the day on which the certificate was issued. I have concluded that as formulated either as filed or as foreshadowed in Exhibit A, the application is a general protections court application. There is presently no extension of time.

It seems to me that these statutory conditions are not mere limitations, but rather conditions of the kind to which Dixon J referred in the passage quoted from Parisienne Basket Shoes. They are conditions in respect of the Court’s jurisdiction. They are conditions which govern whether a person is entitled to invoke the Court’s jurisdiction.

50    Rather than seeking to rely on r 8.21 of the Rules, the course open to Mr Pike is to make an application under s 370(a)(ii) of the FW Act for an extension of time in which to advance a general protections court application with respect to his wrongful dismissal claims.

E.    Should the discretion pursuant to s 370 be exercised?

E.1.    The explanations provided by Ms Otavski

51    In para 14 of her affidavit sworn 10 July 2026 (10 July Affidavit), Ms Otavski states:

…Given the Amended Statement of Claim and Amended Originating Application first filed on 8 December 2025 stated dismissal claims in respect of the Second Applicant, and to avoid a refiling of the same, already then filed, documents, or a Further Amended Originating Application and Further Amended Statement of Claim, I mistakenly filed the Second Applicant's section 368 certificate only and supplemental to the Amended Originating Application and Amended Statement of Claim that had already been filed, as set out in pages 73-105 of the Tender Bundle. By filing the section 368 certificate only, I intended to file, on the Second Applicant's behalf, the necessary initiating documents to cause an application to be made to the Federal Court of Australia to deal with Mr Pike's general protections dismissal dispute. Certainly, those were the instructions that Mr Pike had given to me - that is, to pursue his dismissal dispute in the Federal Court of Australia.

52    Ms Otavski provides the following additional explanation or clarification of what she had done in advancing Mr Pike’s wrongful dismissal claims in this proceeding in paras 12 and 15 of her affidavit sworn on 23 July 2026 (23 July Affidavit):

Given that the proceedings had been commenced by both Mr Pike and Mr Blade in one, consolidated, Statement of Claim, when I made, following the Fair Work conciliations, the amendments to Mr Blade's aspects of the claim so as to alleged dismissal in contravention of the Part 3-1 of the FW Act, I also, at the same time, made the amendments to Mr Pike's aspects of the claim so as to also allege dismissal in contravention of the Part 3-1 of the FW Act. I made these amendments at the same time as both conciliations had been unsuccessful and I wished to limit the costs to all parties and, at the time I made the amendments (which was after the unsuccessful conciliations, after Mr Blade's certificate had been issued but before Mr Pike's certificate had been issued and before I had lodged the documents with the Court) and to (in the future) avoid confusion by filing two Further Amended Originating Applications and two Further Amended Statement of Claims. What I expected at the time of drafting the amendments was that, based on my past experience with the Fair Work Commission, was that Mr Pike's certificate would be issued imminently given that the conciliation of Mr Pike's Fair Work Commission proceedings had already occurred. That is, I expected the section 368 certificate for Mr Pike (Mr Pike's section 368 Certificate) to issue shortly such that both certificates would be issued by the 14th day after Mr Blade's certificate.

…

… What I was stating in my evidence at [14] of my 10 July Affidavit was that in circumstances where the Amended Statement of Claim and the Amended Originating Application had already been filed and where I had had the difficulties in filing those documents that I have addressed in both my 29 June and 10 July Affidavits, I (mistakenly) did not think that the Registry would accept a further copy of the amended documents. As the filing of that Certificate was accepted by the Federal Court Registry without qualification and a copy of the acceptance of that filing appears at pages 327 to 328 of the Tender Bundle and a copy is exhibited and marked "VJ01". I (further mistakenly) formed the view that I had done what was required to make Mr Pike's general protections dismissal application both within time and consistently with the requirements of the FW Act and that filing of the certificate would make the general protections dismissal elements of Mr Pike's claims whole. I understand that this might appear inconsistent with my correspondence to the Respondent's solicitors of 29 October 2025 in which I foreshadowed the Applicants seeking leave to amend the Statement of Claim, but given that the Respondent was on notice of the intended general protections dismissal claims and the sequence of events that occurred since October 2025, that wrongly and mistakenly impacted my thinking.

(Emphasis in original.)

53    Ms Otavski was not challenged in cross-examination as to how she could have originally lodged the ASOC and the AOA for filing on 8 December 2025, advancing wrongful dismissal claims on behalf of both Mr Blade and Mr Pike, at a time when she must have known that the Pike Certificate had not yet been issued. Her explanation that given her previous experience with the FWC, she assumed that the Pike Certificate would have been issued by the date she lodged the AOA and ASOC for filing on 8 December 2025 is somewhat difficult to reconcile with the statement made by Ms Otavski in her 29 October 2025 letter to HSFK that she would seek leave to amend the SOC to include allegations of dismissal in contravention of Pt 3-1 of the FW Act “after the issue of a s368(3)(a) certificate” (emphasis added).

54    Nor was Ms Otavski challenged in cross-examination as to how she could have filed the Pike Certificate on 19 January 2026, without filing a further amended originating application and a further amended statement of claim advancing wrongful dismissal claims by Mr Pike, after the issue of the Pike Certificate. I accept that Ms Otavski’s explanation that she had not taken that course because it was unnecessary because the claims had already been advanced in the AOA and ASOC filed on 10 December 2025, and it would have caused confusion if she sought to refile those documents on 19 January 2026, is a more plausible explanation for her error than the explanation proffered by her for her initial decision to lodge those documents for filing on 8 December 2025, before the Pike Certificate had been issued.

55    The evidence given by Ms Otavski makes plain, however, that she was solely responsible for the errors in advancing Mr Pike’s wrongful dismissal claims in this proceeding.

56    I am not satisfied that the mistakes made by Ms Otavski in (a) lodging the AOA and the ASOC for filing on 8 December 2025, at the time when the Pike Certificate had not yet been issued, and (b) filing the Pike Certificate without filing those documents after the issue of the Pike Certificate advancing wrongful dismissal claims, can relevantly be attributed to any relevant act or omission of Mr Pike.

E.2.    Alleged lack of expedition and good faith

57    JLL initially sought to sheet home responsibility for Ms Otavski’s errors to Mr Pike by (a) claiming that it was Mr Pike’s deliberate choice to act “contrary to s 370 of the FW Act by filing the Amended Originating Application and the ASOC alleging his dismissal by the Respondent contravened s 340 of the FW Act at a time when he was not entitled to do so”, (b) relying on Mr Pike’s delay in making an application for an extension of time until 29 June 2026, (c) alleging that “Mr Pike’s objective has at all times been to have the dispute concerning his dismissal determined by the court and to short cut the FWC processes mandated by the FW Act in respect of dismissal disputes”, and (d) contending that Mr Pike had left the matter “in the hands of his solicitors” and appears to had not made any inquiries as to the status of his claims and to had not made any efforts to ensure their appropriate prosecution.

58    Those contentions were largely answered by Ms Otavski in her 23 July Affidavit, in which she sought to take full responsibility for the errors and delays in advancing Mr Pike’s wrongful dismissal claims in this Court and denied any lack of good faith on his part.

59    In paras 9 and 11 of that affidavit, Ms Otavski deposed:

As I deposed to at [12] of my 10 July Affidavit, the conciliation of Mr Pike's Fair Work Commission proceedings was conducted on 2 December 2025. I attended the conciliation and observed that Mr Pike attended and participated in that conciliation in good faith. He did not state to me, and I do not believe that he had, an objective to short cut the FWC processes mandated by the FW Act in respect of dismissal disputes or that he was determined to have his dismissal claims brought before the court without proper regard for the processes mandated by the FW Act, or the limits of the jurisdiction. I did not receive instructions from Mr Pike to short cut the FWC process.

…

Following the unsuccessful conciliation, Mr Pike instructed me to expand his pleaded causes of action and claims in these proceedings to include relief for the alleged dismissal related contraventions (the General Protections Dismissal Claim).

(Emphasis in original.)

60    Ms Otavski responded to the lack of expedition contention by deposing at paras 18 and 19 of her 23 July Affidavit:

    Contrary to the Respondents' suggestions that Mr Pike has delayed the proceedings, and simply left it in my hands to deal with, Mr Pike has, in fact, consistently instructed BlackBay Lawyers to pursue the General Protections Dismissal Claim, including in the Fair Work Commission proceedings commenced by him and following the conciliation on 2 December 2025. On 2 December 2025, Mr Pike instructed me to make the General Protections Dismissal Claim and has, since that time, consistently instructed me to progress and pursue his dismissal claims against the Respondent.

    From October 2025 to date, Mr Pike has routinely expressed his intention and instructions to pursue his employment matters, including the dismissal. For example, and without setting out each and every occasion on which I have received such instructions:

(a)    from 2 December to 16 January 2026, Mr Pike contacted me, or BlackBay, around 25 times about his claims, including his dismissal claims, and including to give instructions for them to be pursued;

(b)    in February and March 2026, Mr Pike's instructions were more focussed on defamation proceedings that had been commenced in the Federal Court of Australia, which have since been resolved. Despite his focus on those proceedings, Mr Pike would give me instructions concerning his employment and dismissal proceedings, and matters underpinning the conduct of the Respondent but due to the intensity and focus on the other Federal Court proceedings, I failed to serve the amended documents filed in these proceedings until after receipt of the Respondent's correspondence in March 2026; and

(c)    I estimate that I spoke to Mr Pike at least 3 to 4 times each week from 13 October 2025 to late December 2025, and from early January 2026 to late May 2026, in relation to progressing these proceedings. During these conversations Mr Pike gave me factual instructions relevant to the continuation of his employment and dismissal claims, including instructions on potential evidence and loss calculations.

(d)    I have also received written instructions from Mr Pike in relation to the allegations pleaded in the Amended Statement of Claim, and evidence in relation to the pleaded matters, on no fewer than 50 occasions.

61    JLL objected to the admissibility of these paragraphs on the basis that they were just stating conclusions. I overruled the objection as I considered that it went to the weight that could be given to the evidence, rather than their admissibility. After I had rejected questions directed at seeking the nature of the specific communications between Ms Otavski and Mr Pike, given claims for litigation privilege made by counsel for Mr Pike, senior counsel for JLL then called on the two notices to produce that had been served on the applicants immediately prior to the date that the interlocutory application had first been listed for hearing.

62    In response to the first notice to produce, the applicants produced a schedule of some 91 pages listing four documents over which no claim for privilege was made and otherwise some 573 documents over which litigation privilege was claimed.

63    In response to the second notice to produce, the applicants produced a schedule of some 29 pages listing 14 documents over which no claim for privilege was made and otherwise some 95 documents over which litigation privilege was claimed.

64    Senior counsel for JLL sought access to the privileged documents listed in the two schedules on the basis that privilege had been waived in those documents by reason of the content of paras 18 and 19 of Ms Otavski’s 23 July Affidavit. The request for access was not granted. I was not satisfied that there was any relevant waiver of privilege because the paragraphs did not extend beyond generalised comments that Mr Pike had frequently given instructions to pursue the employment issues, including the wrongful dismissal general protections court application, following the unsuccessful conciliation conference. So much was self-evident from the number of communications over which privilege was claimed and the objective circumstances, not least that this proceeding was commenced the day after Mr Pike was dismissed, the foreshadowing of the wrongful dismissal general protections court application in Ms Otavski’s 29 October 2025 letter prior to the conciliation conference, and the alacrity, not tardiness, with which the AOA and the ASOC were lodged for filing on 8 December 2025. This was not a case in which a party was relying on the specific content of legal advice or otherwise privileged communications. Rather, it was a case in which a party was relying on the existence and quantity of communications between a client and their legal representatives.

E.3.    Was Mr Pike implicated in Ms Otavski’s errors?

65    In the course of the hearing, the principal focus of JLL’s submissions moved to a contention that Mr Pike was relevantly implicated in the errors made by Ms Otavski. JLL contends that it could readily be inferred that Mr Pike was aware the general protections court application in relation to his wrongful dismissal claims could not be made in this Court until a Certificate had been issued to him, but he nevertheless instructed Ms Otavski to advance the wrongful dismissal general protections court application before a Certificate had been issued.

66    JLL relied on the evidence given by Ms Otavski as to her usual practice as the foundation for drawing that inference. JLL submitted that the inference could more readily be drawn in the absence of any evidence from Mr Pike.

67    Ms Otavksi was pressed in cross-examination about her usual practice in providing her clients with copies of correspondence with lawyers acting for other parties and explaining the effect of that correspondence to those clients. Ms Otavski accepted that it was her usual practice to do so and that she did so “[v]ery often”.

68    Ms Otavski also accepted that her practice was to act on instructions that she received from clients, and that (a) “[o]ften, but not always”, she would provide a copy of correspondence to a client before sending it to another party, (b) if she did not provide correspondence to a client prior to sending it, “[o]ften, but not always”, she would send it to her client afterwards, and (c) “very often” she would explain to her client what correspondence to another party was concerned with.

69    I readily infer that, given the initial filing of the SOC in which no wrongful dismissal general protections court application was advanced, Mr Pike’s attendance at the conciliation conference, the instructions he gave to Ms Otavski to include wrongful dismissal claims in this proceeding after the conciliation conference was unsuccessful, the frequency of the communications that Mr Pike had with Ms Otavski, and the correspondence passing between Ms Otavski and HSFK in mid to late October 2025 (the substance, at least, of which I am satisfied was communicated to Mr Pike, given Ms Otavski’s usual practice), that by the time that the AOA and ASOC were lodged for filing on 8 December 2025, Mr Pike was aware that he could not advance a wrongful dismissal claim until a Certificate had been issued to him by the FWC. I also readily infer that Mr Pike gave clear instructions to Ms Otavski to advance the wrongful dismissal claims in this Court by filing the AOA and ASOC.

70    I do not accept, however, that there is a sufficient evidentiary basis for me to infer that Mr Pike was aware or otherwise believed at the time that the AOA or the ASOC had been lodged for filing in this Court that the Pike Certificate had not been issued. An equally plausible inference is that Mr Pike assumed that Ms Otavski had been waiting for the Pike Certificate to be issued, the Pike Certificate would be issued shortly after the conciliation conference, given the speed with which the Blade Certificate had been issued, and Ms Otavski had lodged the AOA and the ASOC for filing as soon as she had received the Pike Certificate, given the clear instructions he had given to her to proceed with the wrongful dismissal claim.

71    Nor do I accept that Mr Pike is implicated in any failure to file any originating process or statement of claim within 14 days of the issue of the Pike Certificate, or any delay in making the current application for leave pursuant to s 370 of the FW Act. It is readily apparent from the tone and content of Ms Otavski’s correspondence with HSFK in March and May 2026 and her affidavit evidence that she firmly, albeit wrongly, believed that the filing of the Pike Certificate on 19 January 2026 had remedied any problem that might have arisen because of the premature filing of the AOA and the ASOC in December 2025. In those circumstances, I can only infer, in the absence of any evidence to the contrary, and given Ms Otavski’s evidence of her usual practice, that she would have communicated those strongly held and mistaken understandings to her client, Mr Pike. It is not realistic to infer that Mr Pike was in a position to recognise the errors in Ms Otavski’s understanding, particularly given the Registry’s acceptance for filing of the Pike Certificate on 19 January 2026 and its earlier acceptance for filing of the AOA and the ASOC on 10 December 2025 and the mistaken jurisdictional contentions advanced by HSFK in their letters of 21 and 27 October 2025 that may well have led Mr Pike to view with some scepticism HSFK’s contentions in their 2 March 2026 letter.

72    Moreover, and more fundamentally, properly understood, this is not a case in which a litigant has acquiesced or contributed to a delay in filing a pleading within 14 days of the issue of a Certificate. The circumstances of this case are far removed from the position in Clarke where an applicant made a conscious decision not to commence a proceeding within the limitation period (at [39]). In this case, the problem arose from a legal representative’s misapprehension that they could file pleadings containing the wrongful dismissal general protections court application prior to the issue of the Certificate, and then subsequently file a Certificate in order to cure any jurisdictional issues that may have arisen because the general protections court application was initially filed without a Certificate.

E.4.    The discretion should be exercised

73    I am positively satisfied that, in all the circumstances, the discretion should be exercised to permit Mr Pike to make a general protections court application with respect to his wrongful dismissal claims after the 14-day period had elapsed from the issue of the Pike Certificate on 5 January 2026 for the following reasons.

74    First, I am satisfied that there is an acceptable explanation for the delay in making an application for an extension of time. The delay was due to errors made by Mr Pike’s legal representatives, not to any act or omission of Mr Pike. Rather, Mr Pike had instructed Ms Otavski immediately after the unsuccessful conciliation to make a wrongful dismissal general protections court application and thereafter had frequent communications with Ms Otavski. The delay in seeking an extension of time pursuant to s 370(a)(ii) of the FW Act to file a valid general protections court application was caused by Ms Otavski’s mistaken but firmly held belief that the filing of the Pike Certificate on 19 January 2026 cured any jurisdictional issues that might have arisen because of her erroneous decision to file the AOA and the ASOC in December 2025 before the Pike Certificate had been issued.

75    Second, there is no relevant prejudice to JLL. A draft of the SOC that included the wrongful dismissal general protections court application was provided to JLL prior to 21 October 2025, JLL has not yet filed a defence, and the proceeding otherwise was always going to remain on foot, given the other claims advanced by Mr Pike in the AOA and the ASOC.

76    Third, given I am satisfied that my discretion should be exercised to grant Mr Blade an extension of time (see [82]-[86] below), considerations of fairness between the two applicants also favour the exercise of the discretion in Mr Pike’s case. Both are in a like position, they were dismissed by the same employer on the same day for apparently related reasons and each seeks to advance wrongful dismissal general protections court applications in this proceeding. It is not to the point that their claims necessarily will ultimately turn on discrete facts and considerations – the relevant consideration is in a like position – not the same position.

77    Fourth, I do not accept, to the extent that it might ultimately have been pressed by JLL, that Mr Pike had any objective to have his dispute concerning his dismissal determined by this Court and “to short cut the FWC processes mandated by the FW Act in respect of dismissal disputes”. For the reasons set out above, I do not accept Mr Pike was implicated in his legal representative’s misunderstandings of jurisdictional issues.

78    Fifth, although in an application of this nature, the relevant merits inquiry does not extend beyond whether the case advanced by an applicant is arguable, I do not accept JLL’s submission that, for present purposes, the merits of the dismissal claim sought to be advanced by Mr Pike is a neutral consideration. As matters currently stand, the wrongful dismissal claim was brought by Mr Pike in response to a letter of termination that expressly stated that the termination decision was “not related to any specific finding in respect of your conduct as an employee of JLL and the investigation is yet to be finalised” and claimed it was taken because of a view that “a change is required in the industrial business in Australia and this includes the need to establish new leadership within the team”.

F.    Mr Blade’s application

79    The salient facts pertaining to Mr Blade’s general protections court application are set out in Section B above. Relevantly, the Blade Certificate was issued on 24 November 2025. Ms Otavski subsequently lodged the Blade Certificate for filing with the Court on 8 December 2025, but for the reasons set out in Section B, the Certificate was not accepted for filing until 10 December 2025.

80    Had the documents been validly accepted for filing on 8 December 2025, the requirements of s 370(a)(ii) of the FW Act would have been fulfilled, as the general protections court application would have been made within 14 days of the Blade Certificate being issued. In the absence of any apparent authority, however, to indicate that I can take the date of lodgement as the date of filing in the context of s 370 of the FW Act, Mr Blade’s general protections court application is two days out of time, and is therefore not validly made.

81    In their submissions, JLL stated that while there was no formal consent position between the parties, “there is a large measure of agreement between the parties as to how the IA should be disposed of as regards to the First Applicant”. In its proposed short minutes that it provided to the Court, JLL consented to a grant of leave to Mr Blade to file the amended originating application, which was filed on 10 December 2025, and to an order granting an extension under s 370(a)(ii) of the FW Act to allow Mr Blade to make a general protections court application. For the following reasons, I am satisfied that an extension of time should be granted to Mr Blade pursuant to s 370(a)(ii) of the FW Act.

82    First, Mr Blade’s general protections court application extension was filed within time on 8 December 2025 but was not accepted for filing on that date solely because of Ms Otavski’s error in including a Form 2. There was no suggestion made by JLL that Mr Blade was relevantly implicated in Ms Otavski’s error.

83    Second, as in the case of Mr Pike, there is no relevant prejudice to JLL (see [75] above).

84    Third, as I have decided that my discretion should be positively exercised in Mr Pike’s case, considerations of fairness similarly weigh in favour of the grant of an extension to Mr Blade.

85    Fourth, the same considerations as to the merits of Mr Blade’s claim apply as in Mr Pike’s case (see [78] above).

86    Fifth, while not determinative, the parties have in large part agreed that Mr Blade should be granted an extension of time.

G.    Disposition

87    For the foregoing reasons, (a) orders are to be made pursuant to s 370(a)(ii) of the FW Act, extending the period within which a general protections court application can be made by Mr Blade to 10 December 2025 and extending the period within which a general protections court application can be made by Mr Pike to a date which is seven days after the publication of these reasons, and (b) leave is to be granted to Mr Blade, nunc pro tunc, to file the AOA dated 8 December 2025 and lodged for filing on that date, and leave is to be granted to the applicants to file the FAOA dated 30 June 2026 and a further amended statement of claim in the form of the ASOC.

88    Given both parties indicated that they wished to be heard on costs, notwithstanding that the usual position is that matters arising under the FW Act are not the subject of costs orders, the parties will be given an opportunity to make any application for their costs, once they have considered these reasons for judgment.

Associate:

Dated:    21 August 2026