Kok Kiong Yam v Summer Lawyers

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 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).

1. Before the Court is an application for an extension of the time for filing a general protections application. The application was lodged 1 day after the expiry of the statutory timeframe and accepted for filing 6 days after the expiry of the statutory timeframe.
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, being unopposed, was entirely uncontentious.
2. On 24 May 2021, the Applicant (Mr Yam) commenced employment with Summer Lawyers (Australia) Pty Ltd (First Respondent) in the position of Partner, pursuant to a written contract of employment dated 19 April 2021.
3. On 10 January 2025, the First Respondent terminated Mr Yam's employment with immediate effect by reason of serious misconduct.
4. Mr Yam subsequently applied for assistance of the Fair Work Commission to deal with a general protections dismissal dispute and, on 4 September 2025, the Commission issued a certificate under s.368(3)(a) of the Fair Work Act 2009 (Cth) (Act) certifying that the Member was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) had been or were likely to be unsuccessful.
5. On 19 September 2025 at 3.30pm, a solicitor on behalf of Mr Yam attempted to electronically lodge an originating application and Form 2 (to which a statement of claim was attached) in this Court. That application was not accepted for filing in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) until 25 September 2025.
6. On 16 December 2025, the parties received email correspondence from a Registrar of this Court which listed the matter for directions hearing on 23 December 2025; and indicated that the Form 2 application lodged with the Court may have been made out of time.
7. The matter proceeded to directions hearing on 23 December 2025 before a Registrar of this Court. On that occasion Mr Yam's representative confirmed that, in light of the apparent late filing of the Form 2 application, an extension of time was sought and orders were made directing parties to file material in respect of the extension of time application and referring the matter to a Judge for determination on the papers.

1. In support of their request for the allowance of more time for filing the original application, the Applicant filed the following documents on the Court's portal:

(a) An Originating Application - Fair Work Division, accepted for filing on 25 September 2025;

(b) A Form 2 - Claim under the Act alleging dismissal in contravention of a general protection, accepted for filing on 25 September 2025;

(c) A Certificate under s.368of the Act;

(d) An outline of written submissions, accepted for filing on 30 January 2026; and

(e) An affidavit of a solicitor for the Applicant, accepted for filing on 30 January 2026.

1. On 16 February 2026, the Respondents confirmed that they did not intend to file any material in opposition to the extension of time application.
2. As there was no objection, the matter proceeded before the Court as presently constituted to be determined on the papers having regard to what is presently before the Court.

1. The Act provides a statutory bar for commencing proceedings involving a dismissal related general protections dispute in this Court, such that the Commission must first issue a s.368 certificate in relation to the dispute and the 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: s.370(a)(ii) of the Act.
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.2.12 and 2.15 of the Rules. And, provided the whole electronic document is received by 4.30pm on a day the Court's Registry is open for business, and is subsequently accepted by a Registrar under r.2.15(1), it is taken to have been filed on that day: r.2.15(2).
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 4 September 2025 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. The application was required to be filed in this Court by 18 September 2025.
3. The application was not lodged electronically until 19 September 2025 at 3.30 pm and not accepted for filing until 25 September 2025. Accordingly, the application to this Court was lodged 1 day after the expiry of the statutory timeframe and accepted for filing 6 days after the expiry of the statutory timeframe.
4. I turn now to consider the facts and circumstances of this matter in light of the established (albeit non-exhaustive) principles.

1. The length of delay in lodgement (1 day) is properly considered a short delay in the present context.
2. The explanation for the delay in lodgement of the originating materials is attributable to representative error, where Mr Yam's solicitor miscalculated the correct date for filing by 1 day.
3. Ignorance of Court procedures is not of itself an acceptable explanation for delay of this kind. However, it is apparent in this case and I accept that the application was lodged and filed late due to representative error, the consequence of which ought not be visited upon an applicant.
4. In the particular circumstances of this case, I am satisfied that the explanation weighs in favour of the exercise of the discretion to extend the time for filing.

1. The Respondents have chosen not to identify any prejudice to them that may have been occasioned by the delay nor do I consider any particular prejudice would befall the Respondents were an extension granted.
2. 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. The circumstances of this matter are such that there is likely to be a disputed contest on the facts. As such, on the material presently before the Court, it is premature for the Court to make an assessment on the prospects of success.
3. Additionally, the Court has before it an application that makes out at least the basis of the 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.
4. 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 factor weighs neutrally in the exercise of the discretion to extend the time for filing.

1. That the legislature provided 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 making the application. The Court will fix a program for hearing the substantive application as the next step.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.