Fair Work Ombudsman v New Switch Electrical Pty Ltd - Extension of Time

Original Word Document (81 KB) Federal Court of Australia

Fair Work Ombudsman v New Switch Electrical Pty Ltd (Extension of Time) [2026] FCA 390

| Appeal from: | Fair Work Ombudsman v New Switch Electrical Pty Ltd (No 2) [2025] FedCFamC2G 1634 |
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| File number(s): | VID 1453 of 2025 |
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| Judgment of: | WHEELAHAN J |
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| Date of judgment: | 7 April 2026 |
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| Catchwords: | PRACTICE AND PROCEDURE – application for deemed and substituted service of notice of appeal pursuant to r 10.23 of the Federal Court Rules 2011 (Cth) – application for dispensation with requirement to serve notice of appeal pursuant to r 1.34 of the Rules – application for extension of time to serve notice of appeal pursuant to r 36.05 of the Rules – held that it is in the interests of justice to extend time for service of notice of appeal – no likely prejudice to the respondents if time extended – application for extension of time granted |
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| Legislation: | Acts Interpretation Act 1901 (Cth) s 13(1)

Corporations Act 2001 (Cth) s 109X(1)(b)

Federal Court of Australia Act 1976 (Cth) s 59(4)

Legislation Act 2003 (Cth) s 13

Federal Court Rules 1979 (Cth) O 52, r 12(1), r 15

Federal Court Rules 2011 (Cth) rr 1.51, 10.02, 10.23-10.24, 10.31(b) 36.01-36.03, 36.05-36.06 |
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| Cases cited: | Mijac Investments Pty Ltd v Graham [2010] FCA 895

Moore v Tooheys Ltd (1981) 56 FLR 345 |
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| Division: | Fair Work Division |
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| Registry: | Victoria |
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| National Practice Area: | Employment and Industrial Relations |
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| Number of paragraphs: | 23 |
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| Date of hearing: | 7 April 2026 |
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| Counsel for the appellant: | Mr T Goodwin |
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| Counsel for the respondents: | The respondents did not appear |

ORDERS

| | | VID 1453 of 2025 |
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| BETWEEN: | FAIR WORK OMBUDSMAN

Appellant | |
| AND: | NEW SWITCH ELECTRICAL PTY LTD (ACN 646 823 396)

First Respondent

MARK LADORES TAN

Second Respondent | |

| order made by: | WHEELAHAN J |
| DATE OF ORDER: | 7 april 2026 |
THE COURT ORDERS THAT:

1. The time within which the appellant was required to serve the notice of appeal on the respondents is extended nunc pro tunc to 20 November 2025.

2. The interlocutory application filed 10 February 2026 is dismissed.

3. The costs of both interlocutory applications be reserved to the hearing of the appeal, which remains fixed for 10 April 2026 at 10.15 am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

1 Division 36.1 of the Federal Court Rules 2011 (Cth) is titled “Institution of appeals”. Rule 36.01 provides that a party who wants to appeal to the Court “must file a notice of appeal” in accordance with one of the specified forms. Rule 36.02 provides, that “[a] notice of appeal must be filed” in the District Registry provided for in the rule, which in this case was the Victoria District Registry, being the District Registry where the proceeding below was last heard or pronounced. Rule 36.03 is titled “Time for filing and serving notice of appeal” and provides –

36.03 Time for filing and serving notice of appeal

An appellant must file a notice of appeal:

(a)    within 28 days after:

(i)    the date on which the judgment appealed from was pronounced or the order was made; or

(ii)    the date on which leave to appeal was granted; or

(b)    on or before a date fixed for that purpose by the court appealed from.

2 Rule 1.51 provides that a word or expression defined in the Dictionary in Schedule 1 has the meaning given in the Dictionary. The word “file” is listed in the Dictionary as follows –

file means file and serve

3 Therefore, the requirement in r 36.03 of the Rules to “file” a notice of appeal within 28 days is a requirement to “file and serve” within 28 days as the heading to r 36.03 suggests where the heading is part of the rule: see Federal Court of Australia Act 1976 (Cth), s 59(4); Legislation Act 2003 (Cth), s 13; Acts Interpretation Act 1901 (Cth), s 13(1). There is no other rule providing for a time period within which to serve a notice of appeal.

4 On 5 November 2025 at 3.43 pm, the appellant lodged a notice of appeal which challenges orders of a judge of the Federal Circuit and Family Court of Australia (Division 2) made 8 October 2025. The notice of appeal was accepted for filing on the following day, which had the consequence that the notice of appeal was taken to have been filed on the day it was lodged, being 5 November 2025: Federal Court Rules, r 2.25(3). The notice of appeal was therefore filed on the 28 th day after the day on which the orders appealed from were pronounced. However, the notice of appeal was not served on the respondents until some days later.

5 On the day the notice of appeal was accepted for filing, a sealed copy of the notice became available to download. A lawyer employed by the office of the appellant then immediately made arrangements for the personal service of the notice of appeal on the respondents. Personal service was required under r 36.06 because the respondents had not appeared or participated in the proceeding below and therefore they had no address for service in the proceeding in the court appealed from.

6 The first respondent is a corporation, and the second respondent is its sole director. The office of the appellant sent a sealed copy of the notice of appeal to each of the respondents by express post and it was delivered to them on 10 November 2025. A process server made one unsuccessful attempt to serve the second respondent personally on 14 November 2025 and succeeded in serving the second respondent personally on 20 November 2025. This had the result that both respondents were served with the notice of appeal personally on 20 November 2025: Corporations Act 2001 (Cth), s 109X(1)(b); Federal Court Rules, r 10.02.

7 On 3 December 2025, the appellant filed with the Court an amended notice of appeal. The proposed amendment is to one aspect of the grounds of appeal and is a modest amendment. The amended notice of appeal was posted to the first respondent by express post to its registered office and was delivered on 10 December 2025. The amended notice of appeal was also posted to the second respondent’s address at which personal service of the notice of appeal was effected. Service by pre-paid post addressed to the person at the person’s “proper address” is an authorised mode of ordinary service: r 10.31(b). The second respondent has no address for service in this appeal, so therefore his last-known business or residential address is his proper address: see the definition of “proper address” in the Dictionary to the Rules.

8 On 10 February 2026, the appellant filed an interlocutory application seeking, among other things, an order pursuant to r 10.23 of the Rules that the amended notice of appeal be taken to have been served on the second respondent on 10 December 2025 and sought an order for substituted service of documents on the second respondent pursuant to r 10.24 with general prospective effect. When the interlocutory application came on for mention on 17 February 2026, I raised with the lawyer representing the appellant whether the orders were necessary having regard to the fact that it appeared that personal service of an amended notice of appeal was not required. However, I also raised with the appellant whether the appeal had been effectively instituted given that it did not appear that the respondents had been served with the notice of appeal within the 28-day period prescribed by r 36.03. I adjourned the interlocutory hearing for 10 days so that the appellant could consider its position.

9 Upon the adjourned hearing counsel appeared for the appellant and foreshadowed an intention to make a second interlocutory application to remedy the position in relation to service of the notice of appeal.

10 On 2 March 2026, the appellant lodged a second interlocutory application which is returnable today. By that application, the appellant seeks the following orders –

1.    an order pursuant to rule 1.34 of the Federal Court Rules 2011 (Rules) dispensing with the requirement to serve the Notice of Appeal filed on 5 November 2025 within the timeframe prescribed rule by 36.03 of the Rules;

2.    in the alternative, an extension of time to 20 November 2025, pursuant to rule 36.05 of the Rules, to serve the notice of appeal filed on 5 November 2025.

11 The application is titled “Application for extension of time” and is in Form 67. The application is supported by an affidavit of Toni Ann Dwyer Goldston, a principal lawyer employed by the appellant, sworn 2 March 2026. The affidavit substantially complies with the formal requirements of r 36.05 which authorises the Court to extend the time within which a notice of appeal must be filed.

12 A process server effected personal service of an unsealed copy of the extension of time application and supporting affidavit on the second respondent on 3 March 2026. On 7 March 2026, a different process server effected personal service on the second respondent of a sealed copy of the extension of time application and supporting affidavit, thereby also effecting service on the first respondent. The appellant also separately served copies of the written submissions in support of the extension of time application by ordinary service via express post to the first respondent’s registered office and to the second respondent’s residential address, both of which were delivered on 13 March 2026.

13 The service of the extension of time application, the supporting affidavit, and the written submissions in support took place in the context of other procedural events. On 23 December 2025, I made orders in Chambers fixing the hearing of the appeal for 10.15 am on 10 April 2026 and providing for a timetable for an appeal book, a chronology, a list of authorities and submissions. The appellant sent copies of the orders to the respondents by courier on 13 February 2026 and has complied with the timetable by causing Parts A and B of the appeal book, an outline of submissions, a chronology, and Part C of the appeal book and a list of authorities to be served on the respondents.

14 I am satisfied that the respondents have fair notice of the appeal and the fact that it is fixed for hearing on 10 April 2026. I am also satisfied that the respondents have been served with the application for extension of time in a way required by the Rules.

15 In her affidavit in support of the application to extend time, Ms Goldston states that the respondents were not served with the notice of appeal in accordance with r 36.06 due to an oversight in the appellant’s office. That explanation, although pithy, is unchallenged. In circumstances where it is only by recourse to the Dictionary that it is apparent that the word “file” in r 36.06 means “file and serve”, I accept the explanation.

16 The appellant submitted that the failure to serve the notice of appeal within 28 days did not result in the appeal being incompetent. The appellant submitted that the only step necessary to commence an appeal is filing the notice of appeal with the Registry. The appellant relied on the decision of the Full Court (Bowen CJ, Northrop and Morling JJ) in Moore v Tooheys Ltd (1981) 56 FLR 345, which was cited by Marshall J in Mijac Investments Pty Ltd v Graham [2010] FCA 895 at [5]. Both cases concerned the institution of appeals under Division 2 of the Federal Court Rules 1979 (Cth) (1979 Rules), where O 52, r 12(1) provided –

An appeal is instituted by filing a notice of appeal in accordance with Form 55.

17 The 1979 Rules did not contain a definition of “file”.

18 The Full Court in Moore v Tooheys held that the appeal before it was validly instituted when filed, and that the failure to serve the notice within the time prescribed by O 52, r 15 was a failure to comply with a requirement of the Rules which could be dispensed with. This point was significant because under O 52, r 15(1)(b) of the 1979 Rules an application for an extension of time to file and serve a notice of appeal had to be made by motion on notice filed within the time a notice of appeal could be filed and served. There is no such limitation in r 36.05 of the current Rules, which provides expressly in r 36.05(2) that an application can be made during or after the period mentioned in r 36.03 in which a notice of appeal must be filed and served. Further, under O 52, r 15(2) of the 1979 Rules the Court or a judge could for “special reasons” at any time give leave to file and serve a notice of appeal. Under r 36.05 of the current rules the power to extend time for the filing of a notice of appeal is not fettered by a requirement that there be “special reasons”.

19 I note by way of observation that, although the Dictionary to the current Rules defines “file” as meaning “file and serve”, some rules such as r 36.01 and 36.02 read more naturally if the word “file” is construed as being confined to actual filing with the Registry.

20 The respondents have not appeared to the appeal so far, they have not formally objected to the competency of the appeal, and they have not opposed the application for the extension of time. For the following reasons I am satisfied that it is in the interests of justice to extend the time for service of the notice of appeal to 20 November 2025 nunc pro tunc. In this case, I consider that to be the more appropriate relief rather than an order dispensing with service, which was made in Moore v Tooheys Ltd in circumstances where the Court held that the appeal had been validly instituted. The period of the extension that is sought by the appellant is short. I am satisfied that the delay in service has been explained. I have reviewed the appellant’s written submissions on the appeal and I am satisfied that the appeal is worthy of argument and has sufficient merit to warrant time for service being extended. I am satisfied that there is not likely to be any relevant prejudice to the respondents if time is extended.

21 In the result, I do not need to resolve the question whether a failure to serve a notice of appeal within the period mentioned in r 36.03 results in the appeal not being competent. On this application that question is now a moot point.

22 As to the appellant’s first interlocutory application which was filed on 10 February 2026, I will dismiss that application. I am not satisfied that it is not practicable to serve a document on the second respondent in a way required by the Rules, which is a condition that is necessary to engage the Court’s powers under rr 10.23 and 10.24. On the contrary, the evidence demonstrates emphatically that service on the second respondent in accordance with the Rules is practicable. For the avoidance of doubt, I do not consider that the amended notice of appeal was required to be served personally, and I am satisfied that ordinary service has been effected on both respondents. I am also satisfied that the respondents have fair notice that the appellant seeks to have the hearing of the appeal proceed by reference to the amended notice of appeal because it is referred to in the appellant’s written submissions on the appeal and has been included in Part A of the appeal book, which has been served on the respondents.

23 The appeal remains fixed for hearing on 10 April 2026 at 10.15 am.

| I certify that the preceding 23 (twenty-three) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. |
Associate:

Dated: 7 April 2026

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