Hourigan v Australian Financial Complaints Authority Limited [2025] FedCFamC2G 1131

1. The application for an extension of time be granted and the time for filing be extended to 22 October 2024.
2. By 26 August 2025, the Applicant is to file and serve:

(a) an amended application which properly identifies the alleged contraventions of the Fair Work Act 2009 (Cth); and

(b) an outline of the evidence on which she seeks to rely in support of her claim.

1. By 23 September 2025, the Respondent is to file and serve:

(a) an amended response; and

(b) an outline of the evidence on which they seek to rely in response to the claim.

1. The matter be referred to mediation before a Registrar of the Court on a date that is not before 24 September 2025.
2. In the event that the proceeding does not settle at mediation, the Registrar conduct a case management conference immediately after the mediation to make directions for the further conduct of the proceeding including listing the proceeding for final hearing.
3. Liberty to apply.

1. In the event of any non-compliance with these orders or failure to attend a hearing, the Court may dismiss the application for default or determine the application on what is before the Court pursuant to rr.13.05 and/or 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2. All documents in this proceeding must be filed on the Court's portal.

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 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. Before the Court is an application for an extension of the time for filing a general protections application. The application was accepted for filing 12 days after the expiry of the statutory timeframe. The extension of time application was opposed by the Respondent.
2. Being satisfied that it is in the interests of the administration of justice to grant an extension of time, the application is allowed. The reasons for this decision follow.

1. The relevant context is outlined below and is uncontentious except where indicated.
2. On 7 July 2021, Ms Hourigan commenced employment with the Australian Financial Complaints Authority Limited (AFCA) in the role of Case Analyst for a fixed term, on a full time basis. On 9 November 2021, AFCA offered her ongoing employment in the same role.
3. On 19 December 2023, AFCA terminated Ms Hourigan's employment by stated reason of serious misconduct, effective immediately. The reason(s) for that decision are strongly contested.
4. Ms Hourigan subsequently applied for assistance of the Fair Work Commission (Commission) to deal with a general protections dismissal dispute and ultimately, on 26 September 2024, the Commission issued a certificate under s.368(3)(a) of the Fair Work Act 2009 (Cth) (Act).
5. On 10 October 2024 at 10.44pm, Ms Hourigan first attempted to electronically lodge an application commencing these proceedings. Before the Court is an exchange of correspondence between Ms Hourigan and the Court's Registry on 11, 14,15, 21 and 22 October 2024 about the requirements. That application was not accepted for filing in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) until 22 October 2024.

1. An initial hearing of the application for an extension of time listed for 27 February 2025 was adjourned on request of the Applicant who sought a date not before 1 July 2025. At the adjourned hearing on 11 July 2025, the Applicant submitted that her condition in the intervening period had affected her capacity to comply with the Court ordered program for filing of evidence and submissions in the matter. In support, she relied on a medical certificate of 24 February 2025 which said she had features of acute bronchitis and she was also under treatment for another new condition, namely extra-cranial Gian Cell Arthritis. As such, it was estimated that she would require 3 to 4 months to stabilise and recover, and she would not be fit for court proceedings during this period of time.
2. In support of her application for an extension of time, the Applicant had filed the following documents on the Court's portal:

(a) An originating Application - Fair Work Division, accepted for filing on 22 October 2024;

(b) A Form 2 - Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection, accepted for filing on 22 October 2024;

(c) An affidavit of service, accepted for filing on 9 December 2024;

(d) A minute of proposed orders sought, accepted for filing on 9 December 2024;

(e) An outline of submissions, accepted for filing on 20 January 2025; and

(f) A further outline of submissions, accepted for filing on 27 June 2025.

1. On the morning of the hearing, in support of her request for an extension of the time for filing, the Applicant submitted the following materials by email to chambers:

(a) An email exchange between Ms Hourigan and the Court's Registry attaching the originating application and form 2;

(b) An email attaching a screenshot of the Court's online filing system and a document with a list of authorities;

(c) An email of acceptance for Ms Hourigan's claim for compensation from Allianz Australia Worker's Compensation (Victoria) Limited dated 9 June 2025;

(d) A copy of an open letter sent to the AFCA on 13 December 2023 by Holding Redlich, who was engaged at the time to act for Ms Hourigan; and

(e) A statement of claim dated 11 July 2025.

1. The Applicant was permitted to make oral submissions at final hearing.
2. For their part, the Respondent sought to rely on the following in opposition to the application for an extension of the time for filing:

(a) An outline of submissions filed 3 February 2025; and

(b) An affidavit of the Respondent's solicitor filed 3 February 2025.

1. The Act provides a statutory bar for taking a dismissal dispute to this Court, such that the Commission must first issue a s.368 certificate in relation to the dispute and the general protections application must be made to the court within 14 days after the day the certificate is issued. However the statute affords discretion for the Court to allow a longer period, on an application made during or after those 14 days.
2. An application is "made" when it is accepted for filing in accordance with the Court's Rules: s.177(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth); rr.2.05(3)(b) and 2.05(4)(a) of the Rules.
3. The principles that the Court applies when considering whether to extend time are not "fixed". The factors identified by Justice Marshall in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-230 (in the context of considering an application made under a provision of the Industrial Relations Act 1988 (Cth) that is similar to s.370(a)(ii) of the Act) have been regularly transposed and applied to this jurisdiction.

1. The issue of a s.368 certificate by the Commission is a jurisdictional pre-requisite: s.370(a)(i) of the Act. In this case, there was no dispute that a s.368 certificate was issued on 26 June 2024 and a copy was in evidence before the Court. Further, there was no argument put before the Court that the Respondent was not properly named and it is apparent that the entity that has submitted a notice of appearance is the same as the entity named on the s.368 certificate.
2. In the present case, it was not contentious and I find that the application to this Court was filed 12 days after the expiry of the statutory timeframe.
3. I turn now to consider the facts and circumstances of this matter in light of the established (albeit non-exhaustive) principles.

1. I have earlier determined that the length of the delay was 12 days. That may properly be considered a short delay in the present context.
2. The explanation for the Applicant's delay may be summarised as follows:

(a) During the initial 14 day period, the Applicant was unwell and not fit to attend to filing her application following two major surgeries within a short period and resultant neurological issues; and

(b) The Applicant did attempt to lodge the originating application, electronically, at 10.44pm on the last day that the application could be made within the statutory timeframe and thereafter engaged with the Court's Registry to attend to filing in accordance with the Court's Rules but, being unrepresented, was not readily familiar with Court processes and requirements for filing of documents.

1. The Respondent did not dispute that the Applicant had first attempted to lodge the application commencing these proceedings on the last day of the relevant period as to have made the application within time. Nor did the Respondent dispute that the Applicant had engaged in correspondence with the Court's Registry about the filing requirements on 11, 14, 15, 21 and 22 October 2024.
2. Ignorance of Court procedures is not of itself an acceptable explanation for delay of this kind. However it is apparent that the Applicant had attempted to file within the statutory timeframe and, after the Court's Registry advised it was not in a form that could be received, over the following 11 days took active steps (including relatively regular communication with the Court's Registry) to file in accordance with the Court's Rules.
3. In the particular circumstances of this case, I am satisfied that these factors weigh slightly in favour of the exercise of the discretion to extend the time for filing.

1. AFCA accepts that the 12 day delay does not, of itself, constitute prejudice, nor do I consider any particular prejudice would befall AFCA were an extension granted. The absence of prejudice is not determinative and I consider this a neutral factor in the present case.

1. An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether to exercise the Court's discretion under s.370(a)(ii) of the Act.
2. In the hours prior to and at the hearing of the extension of time application, the Applicant foreshadowed her intention to file an amended statement of claim. The Respondent did not consent to the grant of leave for an amended application to be filed in that form but, for present purposes only, did not oppose the Court's consideration of the merits on the basis of that document. By that document, the Applicant alleges various adverse action(s) including dismissal from employment. She further claims a series of conduct which would amount to contraventions of ss.340, 345 and/or 351.
3. Also at final hearing, the Applicant made oral submissions in support of her substantive claim if it were allowed to proceed including that everything was fine at work until she raised issues with her manager about a lack of opportunity, being sexism. It was submitted that it became particularly evident when she raised such issue in writing two weeks later using the template for fortnightly reviews. The Applicant submitted that she started getting treated even more differently and was denied of opportunities to progress in her role and was also deprived of flexibility with work hours which is part of the company's polices and procedures. Additionally, the Applicant submitted that once a grievance was made against her manager and she notified AFCA that she was being treated for a mental health condition as a result of the manager's behaviour, the manager's conduct became worse, such as sabotaging the Applicant's files, restricting the Applicant's work hours outside of her contract, and refusing to let the Applicant have sick leave unless a doctor's certificate was provided.
4. The Applicant's claim could not succeed on the current form of the original application or foreshadowed amended statement of claim. Nonetheless, the Court has before it an application and at least an oral articulation of the basis of a claim that adverse action(s) were taken against the Applicant for reason(s) prohibited by various of the general protections provisions at Part 3-1 of the Act. Having regard to the low bar that applies at the present stage, for the purposes of whether to the extend the time for filing, this is sufficient to weigh in favour of the exercise of the discretion to extend the time for filing.

1. That the Court's Rules provide a short timeframe for filing applications of this nature reflects the intention that an application of this kind must be made promptly and without delay. Whether to extend the proscribed time for filing is at the broad discretion of the Court having regard to the particular circumstances of the case.
2. In weighing the relevant factors, I am satisfied that it is appropriate to exercise the discretion at s.370(a)(ii) and am minded to allow further time for filing of the application. The Applicant, being allowed to proceed will be granted leave of the Court to amend her original application in a form that properly identifies each alleged contravention, by reference to section(s) of the Act, the essential elements of the claim and the material facts on which she relies. The Court will hear from the parties as to programming as the next step.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.