Reddin v Occupational Therapy Australia Limited [2025] FedCFamC2G 1522

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. The applicant seeks an extension of time pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (the Act) within which to commence this proceeding.
2. The applicant claims adverse action was taken against her by her former employer, the first respondent, which resulted in the termination of her employment on 16 January 2025. The applicant also alleges that the second and third respondents were persons 'involved' in the contravention of the Act within the meaning of s 550 of the Act.
3. On 6 February 2025, the applicant filed a claim with the Fair Work Commission (Commission) alleging adverse action and a conference was held to deal with the dispute on 8 May 2025. On 13 May 2025, the Commission certified pursuant to s 368(3)(a) of the Act that it was satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. The applicant then had 14 days within which to commence a proceeding in this Court (s 370 of the Act).
4. The applicant did not make an application to this Court within the prescribed 14-day period. Instead, on 26 May 2025, the applicant, without the benefit of legal representation, attempted to commence a proceeding in the Federal Court of Australia. The application was rejected by the Registry of that Court.
5. On 2 June 2025, the applicant was advised that an application for the relief should be made to this Court. On 3 June 2025, the applicant filed an Originating Application and Form 2 Claim in this Court. The Originating Application sought an extension of time within which to commence a proceeding under s 370(a)(ii) of the Act.
6. The Originating Application and Form 2 Claim were then served on the respondents. On 30 July 2025, the respondents, by their solicitor, filed a Response to the applicant's claim in which they objected to an extension of time.
7. On 5 August 2025, Registrar Belot of this Court ordered that the applicant file and serve any affidavit material and an outline of submissions in support of the application for an extension of time by 4pm on 19 August 2025. The applicant did so.
8. On 26 August 2025, the solicitor for the respondents informed the Court by email that the respondents now did not oppose the applicant's application for an extension of time. However, the respondent did not consent to the making of an order and therefore the application was referred to this Court by Registrar Belot for consideration on the papers.

1. The applicant has explained on oath in her affidavit affirmed 19 August 2025 the circumstances surrounding the erroneous filing of an application to the Federal Court of Australia and her personal circumstances during the period between the Commission granting a certificate under s 368 of the Act and the filing of an application with this Court.
2. The applicant explained that because she was acting without legal assistance, suffers from various personal health and mental health issues and was at the critical time in the unexpected process of moving homes with her children, her application was erroneously filed with the Federal Court within the 14-day period and then this Court as soon as she was made aware of her error.
3. The delay in filing proceedings with this Court was six days beyond the time required by the Act. However, the applicant sought to commence a proceeding within the required time but with the wrong Court. The respondents do not dispute the applicant's explanation or seek to challenge the credibility of her explanation for delay.
4. In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300 (Brodie-Hanns) Marshall J, sitting in the Industrial Relations Court of Australia, set down the principles relating to the exercise of discretion to extend time under a similar provision under the then Industrial Relations Act 1988 (Cth). Those principles are the same as identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 349 and more recently by the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [12] (see also Whitfield v One Key Resources Pty Ltd [2014] FCCA 553 at [28] per Judge Lucev).
5. In Brodie-Hanns, Marshall J said at 299-300:

Briefly stated the principles are:

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.

1. Here the applicant has candidly explained in an affidavit the reason for the delay, which was only six days, and there is no prejudice identified by the respondents to an extension of time. It is unnecessary to consider the merits of the applicant's claim, although she claims that they are strong. The merits of the applicant's claims may be a matter considered by the Court in exercising the discretion to extend but in this case, it is the length of the delay, the absence of prejudice and the candid explanation given by the applicant as to her misunderstanding of court process and procedure when commencing the proceeding. The applicant also explained her personal circumstances which she claimed contributed to her ability to seek assistance or guidance regarding the correct procedure at the time of filing her claim.
2. In the circumstances, and mindful of the overarching purpose identified in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible, it is appropriate that the time within which to commence this proceeding be extended nunc pro tunc to 3 June 2025 pursuant to s 370(a)(ii) of the Act.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.