Clarke v Trustees of the Roman Catholic Church [2026] FedCFamC2G 467

Note: The form of the order is subject to the entry in the Court's records.

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 2021 (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 2021 (Cth).

1. By Originating Application sealed on 14 October 2025 which prima facie was signed and dated on 5 September 2025, together with a Form 5 - Small claim under the Fair Work Act 2009 (Cth) ('the Act') which prima facie was signed and dated on 13 October 2025, the applicant alleges a breach of an enterprise agreement and claims that he is owed $1,495.15 in relation to non-payment of accrued time off in lieu of payment for work performed ('TOIL'), superannuation contributions on the claimed amount and interest.
2. If proved, that would constitute a breach of s 50 of the Act which is a civil remedy provision under Parts 4-1 of the Act.
3. The final day of the applicant's employment was 30 August 2019 and the final payment to the applicant was made on 5 September 2019.
4. By the Response filed on 20 November 2025, the respondent opposes the applicant's claim on the grounds that the application is more than six years after the purported underpayment and pursuant to s 545(5) of the Act no order can be made. Therefore, the applicant has commenced the proceedings without any reasonable prospects of success.
5. On 11 December 2025, a Registrar found for the respondent and dismissed the proceedings.
6. By Application for Review which prima facie was signed and dated on 23 January 2026, the applicant seeks a review of the Registrar's decision.

1. By Application in a Proceeding which prima facie was signed and dated on 27 January 2026, the applicant seeks an order extending the time fixed by r 3.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) ('the Rules') that any application for review of the exercise of a power by a Registrar must be made within 21 days after the day on which the power is exercised.
2. By the Response to an Application in a Proceeding filed on 24 February 2026, the respondent seeks that the application be dismissed as out of time.
3. The day on which the Registrar exercised a power was 11 December 2025.
4. Pursuant to r 1.22(2) of the Rules, the time fixed does not include 11 December 2025 and includes the twenty-first day.
5. Pursuant to r 1.22(5) of the Rules, the days inclusive of and between 24 December to 14 January are not to be counted.
6. By application of those rules:

(a) Days 1-12 are 12-23 December 2025 inclusive.

(b) Days 13-21 are 15-23 January 2026 inclusive.

(c) The date by which the application for review must have been made was Friday 23 January 2026.

1. By observation of the Court file, the Review Application was lodged on Tuesday 27 January 2026 and accepted for filing on 29 January 2026.
2. By his affidavit deposed on 27 January 2026 the applicant relies on a medical certificate which indicates that he had "a medical condition and will be unfit for work from 23/01/2026 and 24/01/2026 [sic] inclusive." Having regard to the principles set out in the authorities usefully summarised by Pepper J in UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at 42- 51, I am of the view that the medical certificate relied upon as justifying the applicant's non-filing of the Application for Review on or prior to 23 January 2026 has no probative value. This is because the certificate did not address the critical question of the nexus between what was described in the medical certificate, that he had "a medical condition", and how that was of such a nature that it precluded him from filing his application. Particularly when, regardless of what the applicant's medical condition actually was, it did not preclude him from the arguably more onerous and demanding task of preparing the application itself which prima facie he signed and dated on 23 January 2026. The question as to the applicant's fitness for work was irrelevant to the determination.
3. Relatively recently, Steward J, in a single justice decision in the High Court in Fulton v Chief of the Defence Force & Ors [2025] HCASJ 20 said about enlarging time applications, it is for each judge to determine the potentially relevant factors to take into account in evaluating whether the interest of justice make it necessary for an extension of time to be granted.
4. Despite there being no explanation for the delay that is of probative value, I am prepared to enlarge the time for the Review Application in the circumstances where:

(a) The length of the delay was one business day late,[1]

(b) There is no evidence or inference available that the respondent is prejudiced by the delay; and

(c) The effect of not enlarging the time would have the same effect as a summary dismissal of the applicant's substantive case.

1. Registrars of the Court are delegated powers pursuant to s 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The right to apply to the Court to review the exercise of a power of a Registrar is in s 256 of that Act.
2. Pursuant to r 3.08(1) of the Rules, the Court must hear an application for review of an exercise of power by a Registrar as a hearing de novo. Indeed, this Court is bound by the High Court's decision in Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9 that this hearing must proceed de novo without any regard to the decision of the Registrar.

(1) The Federal Court or the Federal Circuit and Family Court of Australia (Division2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

...

(b) an order awarding compensation for loss that a person has suffered because of the contravention;

...

(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.

1. Section 546A of the Act provides for the underpayment amount to be the difference between the amount required to be paid by an employer and the amount (including a nil amount) the employer actually paid. Applied to this case, the non-payment of TOIL may be considered an underpayment for the purposes of s 545.
2. The legal issue is whether or not the effect of s 545(5) of the Act is that the applicant's claim has no reasonable prospects of success.
3. The factual issues requiring determination in order to resolve the legal issue are:

(a) What is the period to which the alleged underpayment relates?

(b) When did the proceedings commence?

1. Pursuant to r 3.08(2)(a) of the Rules, material which appears to have been before the Registrar to which I have had regard is:

(a) Originating Application dated 5 September 2025.

(b) Form 5 - Small claim under the Act dated 13 October 2025.

(c) Response dated 19 November 2025.

(d) Applicant Written Submissions dated 5 December 2025.

(e) Respondents' Outline of Submissions dated 5 December 2025.

(f) Termination letter dated 16 August 2019.

(g) Last three weeks of timesheets and payslips (6 pages).

(h) Summary of unpaid TOIL.

(i) Total chronological set of payslips and timesheets. (114 pages)

1. Annexed to the Application for Review that was signed and dated by the applicant on 23 January 2026 is 'Attachment 2' which is 43 pages indexed as AFR-1 to AFR-22 which is a mix of submissions, evidentiary material, summaries and screenshots or printouts from the court's e-Lodgement system.
2. From that material, pursuant to r 3.08(2)(b) of the Rules, I only had regard to:

(a) Paragraphs 13.1 - 13.17. (Submissions with respect to 'Authority')

(b) Paragraphs 14.1 - 14.22. (Submissions with respect to 'Lodgement of originating documents').

(c) Annexures AFR 15-22. (Screenshots or printouts from the court's e-lodgement system).

What is the period to which the alleged underpayment relates?

1. According to the applicant's 'Summary of unpaid TOIL' (which also appears at item AFR-3 in Attachment 2 to the Application for Review), the total 34.13 hours of unpaid TOIL that he particularises relates to five separate pay periods. Each instance is supported by a timesheet and corresponding payslip. The first in time relates to the pay period ending on 8 April 2018. The last in time relates to the pay period ending on 19 May 2019.
2. The period to which the alleged underpayment relates is therefore 8 April 2018 to 19 May 2019.

1. The date that the applicant first attempted to commence proceedings by lodgement of an originating process using the Court's e-Lodgement system was 5 September 2025.
2. The applicant alleges system errors which were resolved by email correspondence with the Registry such that the documents were lodged on 8 September 2025.
3. The applicant paid the filing fee on 8 September 2025.
4. On 22 September 2025, the registry told the applicant a Form 5 would be required, rather than the Form 5A originally submitted. On 25 September 2025, the applicant queried the correctness of that instruction. On 29 September 2025, the registry confirmed the instruction. On 13 October 2025, the applicant provided a Form 5 to the Registry and stated "Please note that the information set out in this form is equivalent to that set out in the original Form 5A and the same annexure has been attached."
5. On 14 October 2025, the Registry accepted the document for filing and affixed the seal of the Court.
6. Rule 8.01 of the Rules provides that a person who wants to start a proceeding must file an originating application in the approved form.
7. Rule 2.15 states:

(a) the document has been lodged with the Court in accordance with rule 2.12; and

(b) the filing fee, if any, has been paid (or an exemption or deferral applies); and

(c) the document has been accepted for filing in a registry by having the seal of the Court affixed to it.

1. Rule 2.12(1) provides for lodging documents using the Court's electronic lodgement system.
2. Rule 2.06(2)(a) provides that a requirement that a document be in accordance with an approved form is complied with if the document is substantially in accordance with the approved form.
3. I am satisfied that the Form 5A lodged by the applicant on 5 September 2025 is substantially in accordance with the Form 5 lodged by the applicant on 13 October 2025, meeting requirements of r 2.15(1)(a) and (c).
4. The filing fee was paid on 8 September 2025 meeting the requirement of r 2.15(1)(b).
5. I find that the proceedings ought to be deemed to have commenced on 8 September 2025.

1. I have had regard to the consideration and review of authorities of O'Callaghan J in Testart v Testart (No 2) [2023] FCA 209 at [122]- [134] on the issue of the limitation period provided for in the Act. This is a case where application of the limitation period may be determined on the face of the claim.
2. Much effort and attention was spent by the parties focussing on the dates around the end of the applicant's employment, being the final day of employment on 30 August 2019 and the consequential payment made on 5 September 2019.
3. Firstly, on a plain reading of s 545(5) of the Act_,_ that is an irrelevant matter. The provision applies irrespective of the applicant's employment status or whenever the last payment to him was made.
4. Secondly, each non-payment alleged by the applicant gives rise to a separate cause of action (Testart at [132] citing Judge Cameron in Scotto v Scala Bros Pty Ltd [2014] FCCA 2374 at [310]). It is not the case that each contravention be treated as cumulative and continuing to exist until each breach is resolved by payment to the applicant (see Testart at [130]).
5. The last period to which an alleged non-payment relates ended on 19 May 2019. Six years after that date is 19 May 2025. The proceedings concerned with that non-payment commenced on 8 September 2025 which is three months and 20 days out of time. Pursuant to s 545(5) of the Act, the court must not make an order under s 545 in relation to the underpayment or non-payment.
6. Alternatively, six years prior to 8 September 2025 is 8 September 2019. Pursuant to s 545(5) of the Act the court must not make an order in these proceedings under s 545 in relation to an underpayment or non-payment if it relates to a period prior to 8 September 2019.
7. Order 2 is made accordingly.

1. By their Response, the respondent seeks an order for costs. I make no order as to costs where:

(a) This was a small claims proceeding pursuant to s 548 of the Act. The respondent had not obtained leave to be represented pursuant to s 548(5) of the Act.

(b) I am not satisfied that the proceedings were without reasonable cause (as opposed to my conclusion that, as a matter of law, the proceedings were without reasonable prospects of success). (See s 570 of the Act).

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield.

[1] Where 24-25 January 2026 was a weekend and 26 January 2026 was a public holiday.