Watterson v A1 Anyspray Pty Ltd [2026] FedCFamC2G 371

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 for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. Before the Court is an Application in a Proceeding for an extension of time in which to file a general protections Court application pursuant to s 370 of the Fair Work Act 2009 (Cth) (FW Act) (Extension of Time Application).
3. For the reasons that follow, I grant that application and extend time.

1. The applicant commenced employment with the first respondent on 6 November 2024, and, on the material before me, it appears asserted that he was dismissed and terminated on 13 March 2025.
2. On 2 April 2025, the applicant filed a general protections dismissal application with the Fair Work Commission (FWC).
3. On 3 June 2025, the FWC issued a s 368 certificate confirming that it was satisfied that all reasonable attempts to resolve the dispute between the parties, other than by arbitration, had been or were likely to be, unsuccessful.
4. On 28 July 2025, the applicant filed the substantive Application in this Court alleging dismissal in contravention of the various general protections of the FW Act (Substantive Application). The applicant also contends that adverse action was taken against him pursuant to ss 351 and 352 of the FW Act, and other adverse actions pursuant to s 340 of the FW Act.

1. In support of his application for an extension of time, the applicant filed the following material:

(1) Application - Fair Work Division filed 28 July 2025;

(2) Form 2- Claim under the Fair Work Act 2009, alleging dismissal in contravention of a general protection filed 28 July 2025 (Form 2);

(3) Application in a Proceeding filed 28 July 2025;

(4) affidavit of Ms Stephanie Kelly filed 28 July 2025;

(5) affidavit of the applicant filed 12 November 2025; and

(6) written submissions filed on 12 November 2025.

1. On 25 August 2025, the respondents filed a Notice of Appearance which indicated that Ms Louise Day of Michael R Coldham & Associates had been appointed to represent the respondents.
2. On 13 October 2025, a Registrar of this Court made orders in Chambers timetabling the Extension of Time Application to hearing (October Orders).
3. The applicant was required to file any further affidavit material and an outline of submissions in support of the Extension of Time Application by 11 November 2025. The respondents were required to file any affidavit material and an outline of submissions in response by 9 December 2025.
4. The applicant filed their material on 12 November 2025. No material, at any time, has been filed by the respondents pursuant to the October Orders or, indeed, at all.
5. On 29 October 2025, the Court sent an email to the parties notifying them that the Extension of Time Application had been listed for interlocutory hearing on 21 January 2026 at 10.00am.
6. On 12 November 2025, a solicitor for the respondents, Ms Day, sent an email to the Court stating that the applicant had not complied with the October Orders and sought that the matter be struck out. As indicated above, the applicant filed their material that day.
7. On 13 November 2025, Chambers sent an email to the parties notifying the solicitor for the respondents that the applicant's material was filed with the Court on 12 November 2025. Chambers further advised the solicitor for the respondents that if she sought to press the matters raised in her email correspondence from 12 November 2025, a formal application in the correct form must be filed through the Commonwealth Courts Portal. Chambers did not receive a response from the solicitor for the respondents.
8. On 9 January 2026, Chambers sent an email to the parties noting that no material had been filed by the respondents pursuant to the October Orders. In that correspondence, Chambers sought confirmation from the solicitor for the respondents as to whether they intended to file any material. Chambers did not receive a response from the solicitors for the respondents.
9. On 13 January 2026, the solicitor for the applicant sent an email to Chambers advising that they were served with an unsealed copy of the respondents' outline of submissions and supporting affidavit by email on 10 December 2025. On the same day, Chambers sent an email to the parties requesting that the solicitor for the respondents attend to filing their material forthwith. Chambers did not receive a response from the solicitors for the respondents, nor was any material filed with the Court.
10. On 13 January 2026, Chambers sent an email to the parties requesting appearances for the Extension of Time Application on 21 January at 10.00am. Chambers did not receive a response from the solicitors for the respondents to that email.
11. On 21 January 2026, the Extension of Time Application proceeded to hearing. The applicant was represented by Ms Kelly of Victoria Legal Aid, and there was no appearance by or on behalf of the respondents.
12. In light of all of the above, I am satisfied that the respondents were properly on notice of the Substantive Application, the Extension of Time Application, the October Orders, and the interlocutory hearing listed for 21 January 2026. I therefore determined it appropriate to proceed with the hearing in their absence pursuant to r 5.11 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Section 370(a) of the FW Act provides that a person who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections application in the Court in relation to that dispute unless:

(a) the FWC has issued a certificate under s 368(3)(a) of the FW Act in relation to the dispute; and

(b) the application to the Court 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.

1. As I have already set out, on 3 June 2025 the FWC issued a s 368 certificate. A general protections application in this Court was therefore required to be filed by the applicant by 18 June 2025.
2. The Substantive Application was lodged in this Court on 25 July 2020 and accepted for filing on 28 July 2025. On the material before me, it is unclear as to what the reason for the delay between the lodgement on 25 July 2028 and the Registry accepting the Substantive Application for filing on 28 July 2025.
3. Accordingly, the Substantive Application was lodged 37 days after the expiry of the statutory timeframe and accepted for filing 40 days after the expiry of the statutory timeframe.

WHETHER TO ALLOW AN EXTENSION OF TIME FOR FILING

1. Section 370(a)(ii) of the FW Act vests in the Court a broad general discretion to grant an extension of time if it is deemed appropriate to do so.
2. In Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 (Brodie-Hanns) at 299 - 300, Marshall J set down the principles relating to the exercise of the Court's discretion to extend time beyond the prescribed period. Those principles, regularly applied in this jurisdiction, are as follows:

(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; and

(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. The considerations identified in Brodie-Hanns are not an exhaustive list of matters the Court may have regard to, and the Court may consider any other matters it considers relevant to the exercise of its discretion to grant an extension of time: Clarke v Service to Youth Council Incorporated [2013] FCA 1018.
2. The onus falls on the applicant to satisfy the Court that grounds exist for exercising the Court's discretion to grant an extension of time in their favour, and the respondent bears an evidentiary onus to raise any consideration telling against the exercise of that discretion: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Toohey and Gummow JJ at [547].
3. The Brodie-Hanns principles were most recently considered and applied by Justice Horan in Hamilton v Department of Justice and Community Safety [2024] FCA 55 at [25] - [26].

1. The delay is of moderate length, being a period of 37 days, if you take it from the day of lodgement, or 40 days from the day of filing acceptance.
2. The applicant submits that his mental health issues provide an adequate explanation for the delay in filing.
3. The applicant's evidence is that between 3 June 2025 and 18 June 2025 his mental health deteriorated daily. He deposes to hearing voices and experiencing visual delusions. His evidence is that on 10 June 2025 he considered his mental health to be so poor that he allocated decision-making responsibility in relation to his claim to a friend, Ms Dunstan. Ms Dunstan engaged with his lawyer at that time in relation to his general protections application and whether it ought proceed in this Court.
4. On 12 June 2025, the applicant attended on his general practitioner in relation to his mental health issues, who contacted the Monash Mental Health Crisis Assessment and Treatment Team (CATT). The CATT contacted the applicant that day, following which they arranged for the applicant to attend Monash Hospital for assessment on 14 June 2025.
5. On 14 June 2025, a further appointment was made for the applicant to attend CATT on 18 June 2025.
6. On 19 June 2025, the applicant was admitted as an in-patient at South Eastern Private Hospital.
7. The applicant's further evidence is that when his mental health was beginning to improve whilst in hospital, he instructed his lawyers to write to the respondents, putting them on notice that he intended to pursue his claim in this Court. This occurred on 9 July 2025. Whilst this does indicate some level of capacity in the intervening period of time, the applicant was still, at that time, an in-patient in a psychiatric facility, and was not discharged for a further eight days.
8. On 17 July 2025, the applicant was discharged from the South Eastern Private Hospital, approximately one month after being admitted.
9. On 22 July 2025, Victoria Legal Aid confirmed for the applicant that it would act for him in relation to this matter, and the Substantive Application was lodged three days later on 25 July 2025.
10. Before the Court, annexed to the applicant's affidavit, is evidence of the applicant's appointments with the CATT, notes from the CATT's assessment on 14 June 2025, and medical notes from the applicant's admission to South Eastern Private Hospital.
11. Accordingly, I am satisfied that the applicant suffered from the mental health issues he contends, and that they were significant.
12. I find on the evidence before the Court that the applicant's mental health declined significantly between the FWC issuing the certificate under s 368(3)(a) of the FW Act and 18 June 2025 when the Substantive Application was due to be filed.
13. I am satisfied, on the basis of the applicant's evidence, that during this period he authorised Ms Dunstan to make decisions regarding his general protections claim on his behalf due to his lack of capacity and his admission to hospital for an extended period of time on 19 June 2025, being the day following the expiry of the statutory timeframe, and that his mental health symptoms were so significant as to preclude him from having the capacity to file the Substantive Application by the due date.
14. I am also satisfied that the applicant acted expeditiously as soon as his mental health began to improve. The Substantive Application was lodged in this Court eight days after the applicant was discharged from hospital and three days after Victoria Legal Aid confirmed it would act for him.
15. In light of all of the above, I am satisfied on the evidence before the Court that the applicant's mental health issues provide an adequate explanation for the delay. This weighs in favour of the grant of an extension of time.

Action taken by the applicant to contest the termination

1. As set out above, on 9 July 2025 the applicant's solicitor wrote to the respondents, informing them that the applicant intended to make a general protections application in this Court.
2. This also weighs in favour of the grant of an extension of time.

1. The applicant concedes that the grant of an extension of time will occasion some prejudice to the respondents. If an extension of time is granted, the respondents will be required to defend the proceeding, which they otherwise might reasonably have assumed had been finalised. However, I consider this prejudice to be minimal, most particularly given that at least since 9 July 2025, the respondents were on notice that the applicant intended to pursue a claim in this Court.
2. This weighs slightly against the grant of an extension of time.

1. The applicant contends in his Form 2 that he exercised his workplace right to make a Workers' Compensation claim and to participate in a process which resulted in a compensable claim.
2. The applicant contends that as a consequence of exercising those workplace rights, adverse action in the form of:
   • dismissal was taken against him;
   • threatening to alter his position to his prejudice by commencing legal proceedings;
   • injuring him in his employment or altering his position to his prejudice by not allowing him an opportunity to respond to asserted concerns regarding his conduct prior to dismissal; and
   • failing to pay workers' compensation.
3. The applicant contends that Mr McCormick, the second respondent, was involved in the contraventions pursuant to s 550 of the FW Act.
4. The applicant also contends that the respondents breached ss 351 and 352 of the FW Act.
5. On the material before the Court, it does not appear contested that the applicant exercised the workplace rights he asserted or that he was dismissed.
6. Accordingly, this claim gives rise to an arguable claim under s 340 of the FW Act, pending the evidence ultimately led at trial.

1. There appears, at this preliminary stage and on the limited material currently before the Court, to be a temporal difficulty with the other ss 340 and 351 FW Act claims. However, these matters will need to be properly pled and tested at trial through evidence.

1. It follows from the above that I consider that the applicant has a reasonably arguable claim for relief in relation to his dismissal, although the ultimate merit of that is yet to be decided. The existence of an arguable claim favours the grant of an extension of time.

1. For the reasons already articulated, I have found that the applicant has an adequate explanation for the delay in filing. I have found that the applicant took action to contest his dismissal. I have also found that the applicant's claim, insofar as it relates to the dismissal, gives rise to a reasonably arguable claim under s 340 of the FW Act. I have found that the prejudice to the respondents is limited. I am not persuaded that that prejudice weighs so heavily as to refuse to grant an extension of time in the present circumstances.
2. Accordingly, I make the orders set out at the commencement of this judgment.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.