Prado v Technological Resources Pty Ltd [2026] FedCFamC2G 343

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. These reasons are somewhat truncated given that I have got a list of 19 matters today and a trial starting.
2. On 25 September 2025, the Fair Work Commission issued a certificate under s 368 of the Fair Work Act 2009 (Cth) ('the Act'). That certificate gave the applicant 14 days within which to file an application in this Court. That last day for filing was 9 October 2025.
3. On 13 October 2025, the applicant lodged an originating application and a Form 2 claim in which she alleged dismissal contrary to the "general protections" legislation contained within the Act.
4. The question before me, then, is whether I ought to grant the extension of time.
5. The matter came before me on 8 December 2025, and I ordered that the applicant file her material and that the other respondents file outlines of submission setting out their contentions in relation to the application for extension of time. I adjourned the matter to today.
6. It is trite to say that there are three aspects that a Court looks at when making a decision as to whether time should be extended.
7. Firstly, there is the question of what reason is there for the late filing or what is the excuse for not filing the material on time. The second aspect is what, if any, prejudice is there to the respondents to the application; and, thirdly, is there sufficient merit in the application itself to say that there is an arguable case.
8. The second aspect is a matter that I can deal with fairly quickly. The applicant lodged the material four days late. The matter had been the subject of an application in the Fair Work Commission. The lodging of the material some four days late does not give rise to sufficient prejudice against the respondents such that this prejudice alone would be sufficient to have the Court not extend the time. To their credit, both Mr Duncan and Mr Howard have not argued to the contrary.
9. As far as the reason for the late filing is concerned, the applicant wrote in her affidavit the following:

On 9 October 2025, before lodging, I called the Court registry seeking confirmation about the correct forms to use for lodgement. These were questions about administrative and procedural matters related to the lodgement and the prescribed form of originating documents, seeking a confirmation as to what documents are permitted or required when filing an originating application. I regarded these as general, routine registry enquiries about process rather than substantive interpretation of the law as applied to my specific case or circumstances.

10. She said that after the phone call she emailed the registry seeking confirmation about the permissibility of using a concise statement instead of detailed pleadings for her initial Federal Court general protections lodgement and she received an email from the Court registry with links to online forms. She said that, at 9:23pm on 9 October 2025, she lodged an originating application and supporting material using the eLodgement system in relation to her general protections dismissal. She said that she believed, "in good faith", that by lodging that material on 9 October 2025, she had complied with the 14-day requirement.
11. The lodgement was rejected and the applicant said that she re-prepared her material and refiled the proceeding on Monday 13 October 2025 and that is the material that is before the Court.
12. The applicant said, in her affidavit, that she is self-represented and she had an understanding that a concise summary of the facts was acceptable. She said that she had a brother, who was a solicitor experienced in litigation, but he was not able to discuss the matter with her.
13. She said this at paragraph 23 and 24 of her affidavit:

I understand the first and second respondents contend that neither of them was my "employer". I do not accept that. I rely on the recent amendments to the Fair Work Act 2009 (Cth), including section 15AA, which require the Court to look at the totality of the relationship in determining whether a person is an "employee" or "employer" and say that, on that approach, my case is that I was, in fact, an employee (or at least treated as one in substance) is arguable.

In any event, the general protections claim is not confined only to that characterisation. The adverse action provisions in Part 3-1, including section 342(1) (for example item 3 in the table), also prohibit adverse action against certain persons other than current employees (such as prospective employees and other persons with workplace rights).

I respectfully say that I am not bringing these proceedings frivolously or vexatiously.

1. Annexed to that affidavit is an email from the registry that was sent at 4.50 pm on 9 October 2025. It simply reads:

Good afternoon,

Forms:

An application is commenced by filing:

Originating Application - Fair Work Division

with a supporting claim type:

1. And then lists the forms that were allowed to be filed.
2. The applicant replied at 5.17 pm on 9 October 2025:

Thank you. Please confirm that Fair Work Act general protections matters fall under practise note GPN-CA (concise statement regime), which expressly permits a Concise Statement instead of a formal Statement of Claim or affidavit.

And therefore I can submit a Concise Statement instead of a formal SOC?

1. Obviously, there was no reply given that her question was sent at 5.17pm where the registry was well and truly closed.
2. There is a printout that there was some form of lodgement done at 9.23 pm on 9 October 2025 but it was rejected because it did not comply with Court rules. What is not annexed is what the original material was that was sent on 9 October 2025.
3. The applicant, in her written submissions, did not accept that she was out of time. She put the blame on the registry and referred to cases where the applicant was misdirected by the Court registry about applicable time limits, as if to say that she was misdirected somehow by the registry when she had filed something that was valid and should have been filed. She argued that she had filed within time, that the registry's rejection was based on form and not jurisdiction, that the form defect is curable, and that the registry misdirected her.
4. The first and second respondent described this written submission as "churlish" in that it placed all the blame on the registry and none on the applicant.
5. When the applicant appeared before me today, she accepted that it was her responsibility and it was not the fault of the registry, but really has given no reason as to why it is that, knowing that was the case, she still wrote what she did, nor did she apologise for maligning any registry staff.
6. But, be that as it may, the applicant still claimed that her fault was that she had everything ready to file, had it all sorted, and just simply made a general inquiry because she knew what it was that she had to do and then went ahead to do it.
7. In answer to the question as to why it was that she waited until the final day to make these enquiries of the registry, she said that she had no need to contact the registry beforehand to make those sorts of inquiries and that there was nothing wrong with her making the inquiries on the last day upon which she had to file material.
8. However, she now tells the Court that there have been some very trying personal issues of a medical kind, which I do not need to particularise here, that also affected her that day and she would put more material before the Court if that were needed.
9. The difference between what the applicant has put in writing and what the applicant has said in submissions is quite stark, and the reason for the delay in filing is not altogether evident. It must be said that the applicant did act quickly upon being told that the material was not in the proper form, though if it is that she had looked at the form, especially the Form 2, that form would have guided her very easily into knowing what she needed to file.
10. The applicant said that she had been working on the material and did not leave it until the last minute even though there is no evidence to the contrary in any of the material that she has put before the Court.
11. As far as whether there is an arguable case, the evidence here is fairly clear that the applicant was employed by the third respondent. The third respondent had a contractual arrangement with the first respondent. The first respondent is a subsidiary of the second respondent. The third respondent, in completing its contractual obligation for a particular project with the first respondent, used the applicant as its employee to fulfil that part of its contractual relationship with the first respondent. Therefore, there is, on the submission of the second and first respondents, no employee relationship between them and the applicant.
12. The third respondent claims that the applicant had not ever been dismissed from their employment with the third respondent.
13. Going through the history of the application, whilst it was the Form 2 that was filed on 13 October 2025, that Form 2 was amended by the applicant 16 days later on 29 October 2025. She then filed a statement of claim on 2 December 2025 and then filed another statement of claim on 5 December 2025.
14. In that application, she claims that she was an employee of the first respondent and, therefore, because they are subsidiary of the second respondent, it would seem, though it is not spelt out at all in the application, that the applicant says she was an employee of the second respondent.
15. The applicant says that the third respondent is liable pursuant to s 550 of the Act because they are an accessory to the actions for dismissal made by the first respondent.
16. The applicant's claims, made in her affidavit about s 15AA of the Act, are not matters that were realistically the subject of her claim, notwithstanding that she says this at paragraph 5 of her Statement of Claim, lodged on 5 December 2025:

Having regard to the real substance, practical reality, and true nature of the relationship, including the totality of the relationship and how the contract was performed in practice, the first respondent was the applicant's employer for the purposes of the Act.

1. The applicant had originally said that this was "under section 15AA" of the Act but has deleted that from the application.
2. The applicant is in a different situation from that faced by the sort of mischief that s 15AA of the Act, and the related sections, were enacted to circumvent. The applicant is not a contractor and is never alleged to have been a contractor of the first respondent. The applicant is an employee of the third respondent and always remained an employee of the third respondent
3. The arrangement was one between the third respondent and the first respondent. There is nothing in the material that would allow the Court, at this stage, to say it was arguable that, despite all of this, the applicant was the employee of the first respondent.
4. On that basis, the respondents argue that the application itself does not make for an arguable case simply because the relationship between the first respondent and the applicant was not employer and employee.
5. The second respondent submits that the second respondent really has nothing to do with the matter at all; it is simply the parent company of the first respondent.
6. The third respondent has submitted that the third respondent has really played no part in what has happened. They have kept the applicant employed with them and, after the need for the services of the applicant were required of the third respondent by the first respondent, it was simply a case then of where, or to what other project would the third respondent deploy the applicant (within whatever projects or contracts it had with other parties). Therefore, the respondents claim that there is no arguable case.
7. Whilst the applicant says at all times that she has acted in good faith, as I have said, what she says in submissions is sometimes quite contrary to what she has said in her verbal submissions to this Court.
8. The decision of the Court has to be whether or not, in all of the circumstances, there should be an extension of time. The legislature has put in the time restrictions for a purpose and that purpose being the orderly and timely conduct of applications in this particular area. The Court has to ensure that there are proper grounds for the Court to give extensions.
9. In this case, given the excuse of the applicant, which does not seem to match up with the material that she has put before the Court, and the lack of arguable merit in the claim, the Court finds itself needing to make a very harsh decision to keep upholding what the public interest demands and that is that only proper matters that need the extension of time are given the extension of time.
10. In these circumstances, I refuse the extension of time within which to file and that brings that matter to a close.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta.