Hamilton v Department of Justice and Community Safety

HORAN J: 1 The applicant, Ms Djallarna Hamilton, applies for an extension of time to bring a general protections court application in respect of her dismissal from employment by the respondent, the Department of Justice of Community Safety, which she alleges was in contravention of Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act). 2 Section 370(a)(ii) of the FW Act provides that an application of this kind must be made within 14 days after the Fair Work Commission (FWC) issues a certificate under s 368(3)(a) stating that it is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been or are likely to be unsuccessful, or within such period as the court allows on an application made during or after those 14 days. 3 In the present case, the FWC issued a certificate in relation to the dispute on 12 October 2023. Any general protections court application was therefore required to be made on or before 26 October 2023. The originating application was filed by the applicant on 31 October 2023, having been sent to the Registry by electronic communication after 4.30 pm on the preceding day: see r 2.25(3)(b) of the Federal Court Rules 2011 (Cth). The applicant therefore requires an extension of five days to the period within which an application may be made. 4 While the Department initially adopted the position that it did not object to an extension of time being granted, it now opposes the grant of an extension of time and submits that the application should be refused, primarily due to the applicant's "lack of engagement" with the proceeding which is said to be demonstrated by her failure to take up opportunities to file material in support of her application. 5 For the following reasons, I consider that the application for an extension of time should be granted.

Background 6 On 6 February 2023, the applicant commenced employment with the Department on a full-time basis as a Project Officer (VPS 4) with the Local Aboriginal Justice Action Committee in the Mallee Region. 7 On 2 August 2023, the Department dismissed the applicant from her position, shortly prior to the end of her probationary employment period. 8 On 22 August 2023, the applicant made an application to the Fair Work Commission (FWC) under s 365 of the FW Act, in which she claimed on various grounds that her dismissal contravened Pt 3-1 of the FW Act. On 12 October 2023, after having conducted a conference to deal with the dispute, the FWC issued a certificate under s 368(3)(a) of the FW Act. 9 The circumstances surrounding the applicant's dismissal are the subject of the claims made in her general protections court application, which is supported by a statement of claim filed together with the originating application on 31 October 2023. In that originating application, the applicant sought an extension of time under s 370(a)(ii) of the FW Act, and provided an explanation for the delay based on her personal circumstances. 10 The proceeding was listed for an initial directions hearing before Registrar Hird on 19 December 2023. Following correspondence with the parties, the Registrar made orders by consent to vacate the directions hearing and to adjourn the extension of time application for hearing by a Judge on a date not before 29 January 2024, with such hearing to be determined on the papers. The Registrar ordered the applicant to file and serve any submissions (not exceeding five pages) and any evidence in relation to the extension of time by 22 January 2024. Registrar Hird's orders contained the following note, which reflected an email that had been sent to the Court on behalf of the Department: THE COURT NOTES THAT: A) The Respondent has advised the Court that it does not object to the extension of time being granted. 11 Consistently with that note, the orders did not make any provision for the Department to file evidence or submissions in relation to the extension of time application. 12 The applicant did not file any submissions or evidence pursuant to Registrar Hird's orders of 19 December 2023. 13 The matter was listed before me for a case management hearing on 26 February 2024. The Department appeared at the hearing and was represented by counsel. The applicant did not appear. At the conclusion of the hearing, I made orders directing the applicant and the Department each to file and serve any submissions and any evidence in relation to the application for an extension of time by 25 March 2024 and 8 April 2024 respectively. 14 The applicant has not filed any submissions or evidence pursuant to those orders. 15 On 10 April 2024, the Department filed written submissions and an affidavit affirmed on 8 April 2024 by Eleanor Kate Weir, a solicitor employed by the Department who has carriage of the matter. Among other things, Ms Weir deposes to the Department having sent a copy of the Court's orders dated 26 February 2024 to the applicant by email and by express post.

Applicable provisions of the FW Act 16 Part 3-1 of Ch 3 of the FW Act contains provisions relating to general workplace protections. The objects of the Part include the protection of workplace rights (defined in s 341), the protection of freedom of association, the provision of protection from workplace discrimination, and the provision of effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of the Part: s 336(1). 17 Division 8 deals with compliance. Where a person alleges that he or she was dismissed in contravention of Pt 3-1, an application may be made to the FWC to deal with the dispute. The FWC may deal with the dispute by mediation or conciliation, including by holding a private conference. If the FWC is satisfied that all reasonable attempts to resolve the dispute (excluding arbitration) have been, or are likely to be, unsuccessful, it must issue a certificate to that effect under s 368(3)(a). The FWC must also advise the parties if it considers, taking into account all the materials before it, that arbitration or a general protections court application in relation to the dispute would not have a reasonable prospect of success: s 368(3)(b). 18 If the FWC has issued a certificate under s 368(3)(a), the parties may agree to the FWC arbitrating the dispute: s 369. Alternatively, the applicant may make a "general protections court application", that is, an application to a court under Div 2 of Pt 4‑1 for orders in relation to a contravention of this Part: s 368(4). 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 day 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. Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728). Note 2: For the purposes of subparagraph (a)(ii), 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. (Emphasis added.)

Legal principles 19 The grant of leave under s 370(a)(ii) is discretionary. The applicant bears the onus of satisfying the Court that the extension of time is appropriate, and that onus is to be discharged "in the context that the legislature has fixed a short limitation period": Clarke v Service to Youth Council Inc [2013] FCA 1018 at [9] (White J); Chou v Digital61 Pty Ltd [2021] FCA 640 at [8]-[9] (Abraham J). 20 The principles that govern the exercise of the discretion conferred by s 370(a)(ii) are settled. They were articulated by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 in relation to a similarly worded provision of the former Industrial Relations Act 1988 (Cth): (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. 21 Apart from their legislative endorsement in Note 2 to s 370, these principles have been subsequently applied by this Court to the exercise of the discretion conferred by s 370(a)(ii) of the FW Act: see e.g. Clarke at [5]-[6]; Chou at [11]-[12]. The note to s 370 may therefore be treated "as a reference to the kinds of considerations which may be relevant" to the exercise of the discretion to extend time: Clarke at [5]. 22 As White J noted in Clarke at [7], it is also relevant to take into account the observations made by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 in relation to statutory limitation periods and their rationale. A limitation period "represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period", and a provision for extension of that period "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": Brisbane South RHA at 553 (McHugh J, with whom Dawson J agreed). Further while "[t]here is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion", the applicant has the ultimate onus of satisfying the court that time should be extended and must satisfy the court that grounds exist for exercising the discretion in his or her favour: Brisbane South RHA at 547 (Toohey and Gummow JJ). Those observations are consistent with and reflected in the first principle set out in Brodie-Hanns.

Consideration 23 As mentioned above, the Department initially did not object to an extension of time being granted to the applicant under s 370(a)(ii) of the FW Act. However, after the applicant did not file any further material in support of her application, the Department changed its position and submitted that the application for an extension of time should be refused. 24 The Department opposes the grant of an extension of time on the following bases. (a) First, the Department submits that the applicant has failed to take up the opportunities afforded to her by the orders made by the Court to file material in support of her application for an extension of time. The Department submits that this leaves the Court with "no adequate material in respect of which to exercise its discretion", in circumstances where the onus is on the applicant to satisfy the Court that it is appropriate to exercise the discretion in her favour. (b) Secondly, the Department submits that the applicant's failure to file further material reveals a "total lack of engagement" on the part of the applicant and demonstrates that she does not intend to prosecute, or is not sufficiently interested in prosecuting, the application in so far as it relates to her dismissal. 25 The Department does not at this stage seek an order for the proceeding to be dismissed, noting that the originating application and statement of claim may include complaints about alleged adverse actions taken against the applicant falling short of dismissal, such that refusal of an extension of time under s 370(a)(ii) might not dispose of the entire application: see Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [117] (Burley J). However, the Department reserved its right subsequently to make an application for the proceeding to be dismissed in the light of the outcome of the extension of time application. 26 For the following reasons, having regard to the principles set out in Brodie-Hanns, I am satisfied that the applicant should be granted an extension of time to file the application under s 370(a)(ii) of the FW Act. 27 First, the applicant's delay in filing the application is relatively short. The applicant has given an explanation for that delay which is prima facie acceptable, and the Department has not taken issue with that explanation. For present purposes, it is unnecessary to set out the factual circumstances relied on by the applicant to explain the delay, other than to say that they are serious and personal to the applicant. 28 Secondly, the Department has not identified any particular prejudice caused by the applicant's delay in bringing the application. For such purposes, the relevant prejudice is that caused by the delay, that is, any prejudice which would not have been suffered if the proceedings had been commenced within the 14-day period: see Clarke at [31]. While the absence of prejudice to the Department is not of itself a sufficient basis to extend time under s 370(a)(ii), it is not a factor which militates against the grant of an extension in the present case. 29 Thirdly, in relation to the merits of the substantive application, I am not in a position to consider the allegations made in the application in any detail. The claims raise issues of fact, many of which are likely to be in dispute between the parties. However, having reviewed the originating application and statement of claim, I proceed on the basis that the application raises a case that is at least arguable. This is consistent with the Department's initial position of not pressing any objection with respect to the timing of the filing of the application. Although the Department's position has since changed, its opposition to an extension of time is not based on any submission that the substantive application lacks merit. The allegations made by the applicant will undoubtedly be contested, but it is not "difficult to discern how the applicant's assertions … could form the basis of any claim under the general protections in Pt 3-1 of the FW Act": cf. Chou at [37]. In this regard, I note also that there is no evidence that the FWC has advised the parties under s 368(3)(b) that it considers that a general protections court application in relation to the dispute would not have a reasonable prospect of success. 30 Fourthly, in relation to the Department's submissions regarding the applicant's lack of "engagement", I have had regard to the fact that the applicant has not filed any evidence or submissions pursuant to the orders made on 19 December 2023 and 24 February 2023. Nevertheless, while those orders provided the applicant with an opportunity to file further evidence or written submissions, they did not in terms require the applicant to do so. In the absence of any evidence or submissions, the application for an extension of time falls to be determined on the basis of the materials that have been filed, namely the originating application and statement of claim, together with the affidavit of Ms Weir and the Department's written submissions. I do not accept the Department's submission that the Court does not have adequate material on which to exercise the discretion to extend time pursuant to s 370(a)(ii). 31 Fifthly, I accept that the applicant's failure to take up the opportunity to file further materials and her non-appearance at the case management hearing on 26 February 2024 might provide some basis on which to question whether she intends to prosecute the application. However, the applicant is not in default of any order and I am not prepared at this stage to find that the applicant has failed to prosecute the proceeding with due diligence: cf. rr 5.22 and 5.23 of the Rules. As considered above, the originating application and statement of claim give rise to a prima facie or arguable claim under Pt 3-1 of the FW Act in relation to the applicant's dismissal, and the applicant has provided an acceptable explanation for her delay of five days in filing the application. It is clear that the applicant has actively contested the termination of her employment. In the event that the applicant subsequently fails to prosecute the proceeding with due diligence or fails to comply with any court orders, the Department can apply for appropriate orders pursuant to the Rules. 32 Sixthly, I do not consider that the grant of an extension of time in the present case would give rise to any unfairness as between the applicant and other persons in a like position. 33 Finally, given that I have concluded that an extension of time should be granted, it is unnecessary to consider whether the refusal of an extension of time under s 370(a)(ii) would have disposed of the proceeding, including whether and to what extent the applicant seeks to make any claims in relation to adverse action other than her dismissal. 34 Accordingly, the applicant is granted leave under s 370(a)(ii) to make her application within the period ending on 31 October 2024. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.