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Employment and industrial relations – practice and procedure…

…interlocutory application for extension of time for application to court – where applicant’s solicitor deposed to belief document filed in time – whether appropriate to grant extension – whether proper case for award of costs against solicitor

In Hennessy v Barminco Limited [2022] FCA 9 (14 January 2022), the applicant made an interlocutory application for extension of time in which to make an application to the court, pursuant to s370 of the Fair Work Act 2009 (Cth) (FW Act).

The applicant did so after the respondent made its own interlocutory application for orders, including that the originating application be dismissed because it was not made within the time frame prescribed by the FW Act (respondent’s interlocutory application).

Section 370 of the FW Act is concerned with matters involving taking a general protections dismissal dispute to court.

On the face of the documents, the originating application was lodged with the court 28 minutes late.

The reason for the delay was provided by the applicant’s solicitor, who stated that he had determined lodgement occurred at 3.58pm Brisbane time, which was 4.28pm Adelaide time. The applicant’s solicitor believed lodgement occurred prior to the closure of the South Australia registry, so that lodgement was within time (at [9]).

Besanko J did not accept this reasoning, including because the applicant’s solicitor did not produce the accounting records to which he referred (at [10]).

The court did not accept that the application was filed within time (at [10]), but applied the well-known principles relevant to whether time should be extended (at [12]) and granted an extension of time (at [17]).

Section 570(2)(b) of the FW Act provides that a party may be ordered to pay costs only if the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs.

In Hennessy v Barminco Limited (No.2) [2022] FCA 33 (27 January 2022), Besanko J ordered the applicant’s solicitor pay half the respondent’s costs of the respondent’s interlocutory application. This was because there was no reason the originating application could not have been filed within time; the applicant only made his application for extension of time after the respondent’s interlocutory application; and the explanation for delay was unsatisfactory (at [3]).

Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email nadia.stojanova@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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