Barro v Northern Territory Air Services Pty Ltd [2025] FedCFamC2G 635

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. This written statement of reasons is derived from the transcript of reasons given orally at the conclusion of the hearing.
2. Section 370 of the Fair Work Act 2009 (Cth) provides that a person may not make a general protection Court application in respect of a dispute unless certain things have transpired. Section 370(a) refers to the issue of a certificate by the Fair Work Commission, and also the fact that the Court application must be made within 14 days of that certificate, or such longer period as the Court may allow.
3. The applicant in this case, Mr Barro, instructed his solicitor to file a general protections application after receiving the certificate from the Fair Work Commission.
4. As I understand it, those instructions, according to Mr Häkkinen's affidavit, were issued in a timely way, but due to some inefficiency or confusion on the solicitor's part, the application was not filed for several days after the 14‑day period had expired.
5. In those circumstances, the applicant needs an extension of time under s 370(a). The principles applicable in this case were summarised by O'Callaghan J in Molony v ATM Logistics Pty Ltd [2018] FCA 640 at [10], but they are, in any event, common sense considerations.
6. We start from the proposition that time limits should be observed, and the Court must be satisfied it is appropriate to make an exception in the circumstances of a particular case before it gives leave. The usual considerations include the length of the delay, the explanation for the delay, the question of prejudice, as well as potentially the merits of the underlying case - although I will come to that issue. At the end of the day, of course, the objective is to do what is fair and appropriate in the circumstances of the particular case having regard to the Court's objectives.
7. In this case, I am satisfied the delay was only short: a matter of days. The delay has been explained by the applicant's solicitor as the product of a failing of the solicitor, not the applicant himself. There is nothing unreasonable in the applicant leaving the task of filing the application to the solicitor. It is not as if there was some lengthy delay where the applicant would be put on notice of some delay which he should have followed up. The delay was, as I say, quite short. I am satisfied the applicant has not been resting on his rights. While the excuse of inefficiency in the solicitor's office is not particularly attractive, it is nonetheless, I accept, a fact of life, and in any event it is not the applicant's fault.
8. It is not apparent that there is any prejudice to the respondent occasioned by the delay. The respondent was put on notice comparatively quickly of some of the difficulties the applicant's solicitor was experiencing.
9. I am entitled to consider the merits of the case if it is allowed to proceed, but of course, my consideration of the merits, to the extent that is appropriate, must be conditioned by the fact it is not appropriate at this very early stage of the proceedings to conduct a mini-trial. The material before me makes clear there is likely to be a hotly disputed contest on the facts, and it would be difficult to reach a clear view on that dispute at this point. The respondent also raised some concerns about the adequacy of the pleading. I am told it is not yet clear whether the applicant has or can adequately articulate a general protections claim. While I have some concerns about that (the statement of claim only having been filed recently), I am not prepared at this juncture to say on the material before me that there are no reasonable prospects of success.
10. Taking all those things together, I am satisfied it would not be unfair or inappropriate to make an exception to the general rule. The fair and appropriate thing to do in this case, I accept, is for the applicant to be given the extension of time required to commence the proceedings. It would otherwise be unfortunate, and potentially unfair, if the applicant were shut out from making a claim in circumstances where he at least attempted to do what was required of him. I will allow the extension of time.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.