FEDERAL COURT OF AUSTRALIA Molony v ATM Logistics Pty Ltd [2018] FCA 640 File number(s): VID 1374 of 2017 Judge(s): O'CALLAGHAN J Date of judgment: 8 May 2018 Catchwords: PRACTICE AND PROCEDURE – General protections claim under Fair Work Act 2009 (Cth) – application for extension of time – whether an extension of time is appropriate – application allowed – whether applicant's solicitor should indemnify client for costs ordered to be paid to the respondents Legislation: Fair Work Act 2009 (Cth), ss 356, 370, 570 Federal Court of Australia Act 1976 (Cth), s 43(3) Cases cited: Brodie Hanns v MTV Publishing Ltd (1995) 67 IR 298 Clarke v Service to Youth Council Incorporated [2013] FCA 1018 Date of hearing: 6, 19 April 2018 Registry: Victoria Division: Fair Work Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr J McKenna Solicitor for the Applicant: Behan Legal Counsel for the Respondents: Mr B J Heath Solicitor for the Respondents: Carter Newell Lawyers ORDERS VID 1374 of 2017 BETWEEN: EOIN MOLONY Applicant AND: ATM LOGISTICS PTY LTD ACN 082 110 003 First Respondent SCOTT TIBBITS Second Respondent JOHN TIBBITS Third Respondent JUDGE: O'CALLAGHAN J DATE OF ORDER: 8 MAY 2018 THE COURT ORDERS THAT: 1. The applicant's interlocutory application dated 2 February 2018 (the application) be allowed. 2. Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth), time be extended until 15 December 2017 for the commencement of a court application for the claims made in the proceeding pursuant to s 356 of the Fair Work Act 2009 (Cth). 3. The applicant pay the respondents' costs of the application. 4. The applicant's solicitor, Mr Francis Ruggiero, indemnify the applicant in respect of the costs that the applicant is liable to pay to the respondents by virtue of order 3. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'CALLAGHAN J: 1 This is an application in which the applicant, Mr Molony, seeks an order pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (the FW Act) that the time for the filing of his application under the general protection claims provisions of the FW Act be extended until 15 December 2017. In his general protections claim, Mr Molony seeks relief with respect to the alleged termination of his employment with the Respondents. 2 An application such as Mr Molony's must be brought within 14 days after the Fair Work Commission (FWC) issues a certificate under paragraph 368(3)(a) of the FW Act stating that the FWC is satisfied that all reasonable attempts to resolve the dispute have been (or are likely to be) unsuccessful. In this case, such a certificate was issued on 29 November 2017. It follows that the originating application in this proceeding, in so far as it made general protection claims, was required to be filed on or before 13 December 2017. It was not filed until 15 December 2017. 3 The respondents oppose the application for an extension of time. They contended that: the applicant has not sufficiently explained why the delay occurred; the applicant's solicitor, Mr Ruggiero, filed the originating application with a false endorsement that "No extension of time is required"; the applicant's solicitor did not file the application for extension of time until 9 February 2018; and the applicant's solicitor then filed affidavits in support of the application late. 4 A number of affidavits were filed, including by Mr Ruggiero, by counsel who drew the statement of claim that accompanied the originating application filed on 15 December 2017 and by Mr Ruggiero's personal assistant. The evidence goes to the question of why it was that emails sent by counsel to Mr Ruggiero's office on 13 December 2017 (which counsel swears included as attachments the originating application and the statement of claim) did not arrive. 5 It is not necessary for the purposes of resolving this application to conduct a royal commission into that question. Various explanations were provided. No deponent was cross examined. And, in the end, counsel for the respondents, in my view, has a point that the various explanations proffered for the delay are unclear and unsatisfactory. Counsel for the respondent is also correct to say that the evidence about why the originating application was filed with the endorsement "No extension of time is required" is most unsatisfactory. The solicitor knew that that statement was untrue, but appears to have been persuaded that it was better to file the document nonetheless. I am less concerned about the delay in filing the application. The Christmas break intervened, and Mr Ruggiero deposed that he was distracted by the death of a loved one. It is also true that the first tranche of affidavits filed in support of the application were considerably late and were inadequate, something which resulted in the first hearing of this application being adjourned to allow the filing of even more affidavits. 6 The principles which govern applications for extension of time of this type were not in dispute. 7 The starting point is s 370(2) of the FW Act. It provides that a general protections court application must be made within 14 days of the issue of the certificate by the FWC "or within such period as a court allows on an application made during or after those 14 days". 8 Section 371(2) contains a note as follows: "In Brodie Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988." 9 As White J said in Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [5]: This note appears to be in the nature of a useful reference by the Parliament, i.e. to assist readers in identifying matters which may bear on the exercise of a court's discretion under the provision. Some authorities have addressed the question of whether the note forms part of the [Fair Work Act 2009 (Cth)] at all (for example, Transport Workers' Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 201 IR 327). In my opinion, it is not necessary to consider that question for the purposes of the resolution of the present application. It is sufficient to treat the note as a reference to the kinds of considerations which may be relevant. 10 The principles referred to in the note are as follows: (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. 11 White J in Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [7] also pointed out that the decision referred to in the note: … was decided before the High Court's decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. 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." Similarly, 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. 12 In this case, it was also accepted by counsel for the respondents that the one person in the cast who was not implicated in the delays was the applicant himself, Mr Molony. As counsel for Mr Molony submitted, the unchallenged evidence establishes that: (1) on 29 November 2017, following the unsuccessful conciliation at the FWC, Mr Molony informed his solicitor of his desire to take the matter to the Federal Court; (2) on 6 December 2017, Mr Molony instructed his solicitor to commence Federal Court proceedings for his alleged dismissal from employment; (3) on 8 December 2017 Mr Molony provided instructions to his counsel during a telephone conference for the purpose of preparing the application; (4) by 8 December 2017, Mr Molony had provided all necessary instructions and documents to enable his counsel to draw the originating application and statement of claim; and (5) on 15 December 2017, Mr Molony telephoned the office of his solicitor to enquire whether the application had been filed. 13 In those circumstances, it is difficult to imagine what else a client could have done to ensure that his initiating proceeding was filed in time. 14 Another relevant factor is that, even if the applicant's application for an extension of time were refused, it is accepted that most of the claims made in the statement of claim could still be advanced, because they are not claims brought for breach of s 340 of the FW Act. Those claims include, by way of example only, allegations by the applicant that the first respondent breached various terms of his contract of employment, and did not pay him his long leave entitlements. (I should add that the respondents strenuously deny the allegations in the statement of claim. Their case is that Mr Molony acted deceitfully and that a payment of $325,000 was agreed to be Mr Molony's only entitlement for his shares in the first respondent and all his accrued entitlements which, the respondents say, Mr Molony well knew. But, given the nature of the dispute between the parties, I cannot venture into the merits of it for the purposes of resolving this application). 15 In all the circumstances, and in particular where: the conduct of the solicitor in respect of the delays is, on any view of the facts, unsatisfactory; the applicant's own conduct (at least with respect to the late filing of his claim) is entirely blameless; and the respondent cannot point to any significant tangible prejudice, especially when the proceeding would continue in an amended form in any event, the appropriate orders to make are these: (1) The applicant's interlocutory application dated 2 February 2018 (the application) be allowed. (2) Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth), time be extended until 15 December 2017 for the commencement of a court application for the claims made in the proceeding pursuant to s 356 of the Fair Work Act 2009 (Cth). (3) The applicant pay the respondents' costs of the application. (4) The applicant's solicitor, Mr Francis Ruggiero, indemnify the applicant in respect of the costs that the applicant is liable to pay to the respondents by virtue of order 3. 16 In my view, the conduct of the applicant's solicitor to which I have referred above is: (1) properly to be characterised as a party's unreasonable acts or omissions within the meaning of paragraph 570(2)(b) of the FW Act; and (2) sufficient to enliven my discretion to order that the applicant's solicitor bear the costs, in the manner ordered, pursuant to s 43(3) of the Federal Court of Australia Act 1976 (Cth). 17 I also note that, in response to a request that I made at the hearing of the application, the court received a letter from the applicant's solicitor dated 23 April 2018 which stated as follows: "I undertake to the court to indemnify Mr Molony in the event that a cost[s] order is made by the court against him with respect to the cost[s] application made by the respondents on 6 April 2018 and heard on 19 April 2018". I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate: Dated: 8 May 2018