FWA certification and extension principles

Stephens v Australian Postal Corporation [2010] FMCA 1012 (15 December 2010)


INDUSTRIAL LAW – General protections court application – 14 day time limit after FWA certificate – power to extend – relevant considerations – short delay by legal representative in giving advice – no prejudice to employer – extension granted.
Fair Work Act 2009 (Cth), ss.360, 361, 370(2), 371(1), 371(2), 544, Pt.3-1
Safety, Rehabilitation and Compensation Act 1988 (Cth)


Smith FM:

The general principles in considering an extension of the 14 days in which to commence proceedings after the FWA certificate issued, was helpfully considered as follows:


It is common ground that at this stage the Court is not in a position to form any judgment as to the likely outcome of the proceedings. It is apparent from the documents filed by the parties that this will turn on an assessment of disputed evidence as to oral statements made on the critical day leading to Mr Stephens’ termination, and also on an exploration of the true reasons for his termination, noting that Australia Post has an onus of proof to satisfy the Court that the termination did not occur for an unlawful reason or for reasons including an unlawful reason (see ss.360 and 361 of the Fair Work Act).


When considering the extension of time application, it is enough that I note that it has not been submitted, and I would not find, that Mr Stephens’ application lacks merit to any extent suggesting that the interests of the administration of justice would be served by refusing an extension of time at this point. Indeed, it is my impression from the material on the file that there are real factual issues presented to the Court which, apart from other considerations, would be deserving of determination on a final basis.


Counsel for both parties today accepted the relevance of authorities which have applied to industrial legislation principles of administrative law in relation to the extension of similarly short time periods for commencing court proceedings. In particular, Wilcox J’s well known discussion in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348 and following, was endorsed and summarised by Marshall J in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 at 299:

  • 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.


The Full Bench of the Industrial Relations Court of Australia referred to his Honour’s summary as an “unexceptionable statement of the relevant principles”, in Coyne v Ansett Transport Industries [1996] IRCA 468.


I have taken into account all of those considerations and other considerations which other authorities have referred to, in relation to an unfettered judicial power to extend a short time limit to allow the bringing of a proceeding at first instance.

Brisbane Barrister – David Cormack

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