Allmark v Eastern Guruma Pty Ltd [2025] FedCFamC2G 1564

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

(Delivered ex tempore and revised from the transcript)

1. Mr Allmark seeks an extension of time to make an application in the Fair Work Division of this Court. Mr Allmark claims that he was dismissed by Eastern Guruma Pty Ltd (Eastern Guruma) in contravention of a general protection under the Fair Work Act 2009 (Cth) (Fair Work Act).
2. On 21 May 2025 the Fair Work Commissioner issued a certificate under s 368 of the Fair Work Act in relation to the dispute between the parties. Pursuant to s 370(a)(ii) of the Fair Work Act, Mr Allmark was required to make his application to this Court within 14 days after the certificate was issued or within such further time as the Court allows. The final day for Mr Allmark to make his application to the Court without needing an extension of time was 4 June 2025.
3. Mr Allmark filed an Application - Fair Work Division and a Form 2 in this Court. Both of these documents are marked as having been lodged on 4 June 2025 at 5:16pm. Pursuant to r 2.05(4) of the Federal Circuit of Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), which applied at the time the application was lodged, a document received by the Court by electronic communication after 4:30pm on a day the Registry is open for business is taken to have been filed on the next day the Registry is open for business.
4. As far as I can tell from the documents before me, Mr Allmark attempted to file an application by email after 4:30pm on 4 June 2025 and it was not accepted by the Registry as it was considered to have been filed out of time. Mr Allmark then amended his application to seek an extension of time, and the application was then accepted for filing. Eastern Guruma does not consent to Mr Allmark being granted an extension of time, but nor does it oppose the extension of time being granted.
5. It is possible, having regard to the reasoning in EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514 (EIW20), that Mr Allmark made his application within the relevant time period and does not need an extension of time. EIW20 was decided in the context of s 477 of the Migration Act 1958 (Cth) and, to the best of my knowledge, has not yet been applied in the context of s 370(a)(ii) of the Fair Work Act.
6. In circumstances where Mr Allmark has sought an extension of time, Eastern Guruma does not oppose the extension of time being granted, and I am satisfied that if an extension of time is required, it is appropriate to grant it. The most efficient way of proceeding in this matter is to proceed on the basis that an extension is required and to grant the extension. This avoids the parties having to make legal submissions about whether an extension of time is required, having regard to EIW20.
7. In considering whether to grant an extension of time in Fair Work matters the Court will often have regard to the principles in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. Those principles are:

(a) 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.

(b) 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 granting an extension of time.

(c) Prejudice to the respondent, including prejudice caused by delay, will go against the granting of an extension of time.

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

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

(f) Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.

1. Mr Allmark filed an affidavit on 4 August 2025 in which he deposed to the attempts he made to file the Application and Form 2 using the Commonwealth Courts Portal commencing at 2:30pm on 4 June 2025. Mr Allmark deposed that he received error messages and was unable to lodge his documents. He gave evidence about his attempts to change the password and create a new account to overcome the issues he was facing. This evidence has not been challenged, and I accept it.
2. I accept that Mr Allmark attempted to file an application prior to 4:30pm on 4 June 2025 and was unable to do so due to technical difficulties. Mr Allmark deposed that he then emailed the application to the Court in the evening of 4 June 2025. He deposed that he was informed by a Court employee on 5 June 2025 that his documents were rejected as the application was considered out of time, and he subsequently amended the application to seek an extension of time. The application was then accepted for filing.
3. I am satisfied that Mr Allmark took action to contest his termination in a timely way, including by attempting to make the application to this Court within time, and then acting promptly to seek an extension of time when told his application was late. He has an adequate explanation for the delay which makes it equitable to extend time in the circumstances.
4. I am satisfied that Eastern Guruma will not be prejudiced as a result of the very minor delay in making the application.
5. I consider the merits of the proposed substantive application to be a neutral factor. Mr Allmark has alleged various contraventions of the Fair Work Act. At present, there is limited detail in relation to the allegations available to me, and the parties have not been required to file evidence yet. I am unable to assess the merits in any meaningful way at this point, and that is why I treat it as neutral for the purposes of the extension of time application.
6. In all the circumstances, I am satisfied that it is appropriate to grant the extension of time. For avoidance of any doubt, I will extend the time for filing the application until 6 June 2025. This is the date indicated on the Application and the Form 2 as the date the documents were accepted for filing. In circumstances where I have now granted an extension of time in this matter, it is appropriate for the matter to be referred to mediation.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.