Paulsen v City of Hobart – Extension of Time Under Fair Work Act

Original Word Document (75.5 KB) Federal Court of Australia

Paulsen v City of Hobart [2026] FCA 462

| File number(s): | VID 1632 of 2025 |

| Judgment of: | HORAN J |

| Date of judgment: | 17 April 2026 |

| Catchwords: | INDUSTRIAL LAW – general protections court application – application for extension of time under s 370(a)(ii) of Fair Work Act 2009 (Cth) – whether adequate explanation for delay – where applicant had unsuccessfully attempted to file documents within the statutory time limit – extension of time granted. |

| Legislation: | Fair Work Act 2009 (Cth)

Industrial Relations Act 1988 (Cth) |

| Cases cited: | AXR54 v SM Adams trading as Piper Alderman [2025] FCA 1509

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Chou v Digital61 Pty Ltd [2021] FCA 640

Clarke v Service to Youth Council Inc [2013] FCA 1018

Jusrut v Link Business Services [2024] FedCFamC2G 583

Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 |

| Division: | Fair Work Division |

| Registry: | Victoria |

| National Practice Area: | Employment and Industrial Relations |

| Number of paragraphs: | 29 |

| Date of last submission/s: | 27 February 2026 |

| Date of hearing: | Determined on the papers |

| Counsel for the Applicant: | The applicant was self-represented |

| Solicitor for the Respondent: | Samantha Masters of Edge Legal |
ORDERS

| VID 1632 of 2025 |

| BETWEEN: | AISHA PAULSEN

Applicant | |
| AND: | CITY OF HOBART

Respondent | |

| order made by: | HORAN J |
| DATE OF ORDER: | 17 APRIL 2026 |
THE COURT ORDERS THAT:

1. Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth), the time within which the originating application in this proceeding was required to be filed is extended to 30 September 2025.

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

REASONS FOR JUDGMENT

HORAN J:

1 The applicant, Ms Aisha Paulsen, commenced this proceeding against her former employer, the City of Hobart, by an originating application filed on 30 September 2025. Ms Paulsen claims relief in respect of alleged contraventions of general protections in Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act), including adverse action that is alleged to have been taken against her because she had, or had exercised, workplace rights or because of her mental health condition.

2 Under s 370 of the FW Act, a general protections court application arising from a dispute about dismissal must be made within 14 days after the Fair Work Commission has issued a certificate under s 368(3)(a) that all reasonable steps to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, or “within such period as the court allows on an application made during or after those 14 days”.

3 In the present case, the Commission issued a certificate under s 368(3)(a) of the FW Act on 9 September 2025. Accordingly, the application to this Court in relation to the dismissal dispute was required to be made by 23 September 2025. As the originating application was filed on 30 September 2025, Ms Paulsen requires an extension of time under s 370(a)(ii) of the FW Act, allowing the application to be made within a further period of seven days after the expiry of the 14-day period.

4 On 6 February 2026, Registrar Donovan made orders for the parties to file affidavit material and submissions in relation to the application for an extension of time under s 370(a)(ii) of the FW Act, and ordered that the application be determined on the papers by a Judge.

5 For the following reasons, after having considered the material filed by the parties, I am satisfied that Ms Paulsen’s application for an extension of time should be granted.

Applicable principles

6 The grant of leave under s 370(a)(ii) is discretionary. The applicant bears the onus of satisfying the Court that an extension of time is appropriate, and that onus is to be discharged “in the context that the legislature has fixed a short limitation period”: Clarke v Service to Youth Council Inc [2013] FCA 1018 at 9; Chou v Digital61 Pty Ltd [2021] FCA 640 at [8]–9.

7 The principles that govern the exercise of the discretion conferred by s 370(a)(ii) are settled. They were articulated by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299–300 in relation to a similarly worded provision of the former Industrial Relations Act 1988 (Cth):

(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.

8 Apart from their legislative endorsement in Note 2 to s 370, these principles have been applied by this Court to the exercise of the discretion conferred by s 370(a)(ii) of the FW Act: see e.g. Clarke at [5]–[6]; Chou at [11]–[12]. The note to s 370 may therefore be treated “as a reference to the kinds of considerations which may be relevant” to the exercise of the discretion to extend time: Clarke at [5].

9 As White J noted in Clarke at [7], it is also relevant to take into account the observations made by the High Court in Brisbane South R egional H ealth A uthority v Taylor (1996) 186 CLR 541 in relation to statutory limitation periods and their rationale. A limitation period “represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period”, and a provision for extension of that period “is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case”: Brisbane South RHA at 553 (McHugh J, with whom Dawson J agreed). Further while “[t]here is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion”, the applicant has the ultimate onus of satisfying the court that time should be extended and must satisfy the court that grounds exist for exercising the discretion in his or her favour: Brisbane South RHA at 547 (Toohey and Gummow JJ). Those observations are consistent with and reflected in the first principle set out in Brodie-Hanns.

Consideration

10 Ms Paulsen relies on the following affidavit material:

(a) two affidavits of Ms Paulsen in support of the originating application filed on 30 September 2025;

(b) two affidavits of Ms Paulsen affirmed on 11 February 2026 in support of the application for an extension of time;

(c) a supplementary affidavit of Ms Paulsen affirmed on 4 March 2026 in response to the City’s outline of submissions.

11 The affidavit material indicates that Ms Paulsen’s employment was terminated by the City on 20 June 2025, following an investigation and a show cause process. The City asserted that there had been an irreconcilable breakdown in the employment relationship for a number of identified reasons. Ms Paulsen disputed this conclusion and the supporting reasons, and raised concerns about the disciplinary process. She claimed that retaliatory action had been taken against her after she made a workplace complaint and raised concerns about bullying and harassment and breaches of the City’s policies, including a workplace behaviour policy.

12 Ms Paulsen provided the following explanation of the circumstances in which the originating application was filed.

13 Immediately after receiving the certificate issued by the Commission, Ms Paulsen took steps to commence a proceeding in this Court by filing an originating application and supporting documents in the Tasmanian Registry. On the following day, 10 September 2025, Ms Paulsen received an email from a client service officer in the Registry advising her that the documents had not been accepted for filing. The client service officer stated:

Unfortunately, we are unable to accept these documents at this stage. Specifically, you will need to:

• Substantially complete the footer in your Form 79, providing your own contact details in lieu of a lawyer’s if you are self-represented.

• If you wish to rely on any supporting evidence, please attach this to the back of a supporting document, such as an affidavit or statement of claim.

Please resubmit as required by replying to this email (vic.filing@fedcourt.gov.au). The Registry will not take any further action until you resubmit as required.

14 On 21 September 2025, Ms Paulsen again attempted to file an “updated” originating application together with a supporting affidavit. In her covering email, Ms Paulsen stated “I am self representing so appreciate all feedback and instruction”.

15 On 22 September 2025, a different client service office at the Registry again declined to accept the documents for filing. The client service officer stated:

Unfortunately, we are unable to accept these documents at this stage. Specifically, you will need to:

• Substantially complete the footer in your Form 79, providing your own contact details in lieu of a lawyer’s if you are self-represented.

• If you wish to rely on any supporting evidence, please attach this to the back of a supporting document, such as an affidavit (Form 59).

• Please be advised that pursuant to rule 29.02 of the Federal Court Rules 2011, an affidavit must comply with Form 59 and must be sworn by an authorised affidavit taker such as a Justice of Peace. I have attached the affidavit form for your convenience.

Please resubmit as required by replying to this email (vic.filing@fedcourt.gov.au). The Registry will not take any further action until you resubmit as required. Once this document is ready to file, the Registry will send you any relevant invoice information.

16 On 30 September 2025, Ms Paulsen resubmitted the originating application and supporting documents by email, and the documents were accepted for filing.

17 In its outline of submissions dated 27 February 2026, the City submitted that the application for an extension of time should be refused because the reasons for the delay were not acceptable and there were no other factors that would weigh towards granting an extension of time.

Explanation for delay

18 This is the principal factor on which the City opposes the application for an extension of time.

19 Ms Paulsen deposed that, at all times, she had acted promptly and in good faith to commence proceedings within the statutory period. She stated that “[a]s a self-represented litigant based in Tasmania, I relied entirely on email correspondence and the online filing system to progress my application” and that, because there was no facility in Tasmania to file documents in person or to obtain “real-time registry assistance”, she was “unable to resolve technical issues immediately or face-to-face”. Ms Paulsen gave evidence of her understanding that the application “had been presented within the statutory period and was undergoing administrative processing rather than being rejected or filed late”. Ms Paulsen also stated that she had experienced difficulties in accessing the eLodgment system through the Commonwealth Courts Portal, which she raised with the Registry on multiple occasions – albeit that most of this correspondence took place after the Registry had received the email dated 30 September 2025 attaching the documents that were ultimately lodged through the eLodgment system on Ms Paulsen’s behalf.

20 The City submitted that, despite Ms Paulsen’s attempts to file within the statutory time limit, she had failed to explain the entirety of the delay or to promptly address the issues identified by the Registry so as to enable her to file the application within the 14-day period. In particular, the City submitted that Ms Paulsen had failed to provide any explanation relating to the steps taken by her between each rejected filing in order “to remedy the minor identified issues”, and that there was no explanation for the seven-day period between the receipt of the email from Registry on 22 September 2025 and the filing of the originating application on 30 September 2025. The City also noted that there was a Registry office in Hobart that was open on weekdays.

21 In her supplementary affidavit, Ms Paulsen gave further evidence about her attempts to address the issues that had been identified by Registry in relation to the filing of her originating application and supporting documents.

(a) In the period between 10–21 September 2025, Ms Paulsen had “attempted to work out how to correct the footer issue and how to present my supporting material in a form acceptable to the Court”, in circumstances where she was self-represented and did not have legal assistance.

(b) In the period between 22–30 September 2025, Ms Paulsen was in the first week of her new employment and “it was difficult to take time away during business hours at short notice”. Ms Paulsen states that she attended in person at the Registry in Hobart on 24 September 2025, but no-one was available to provide assistance and she was told to come back later. She returned to the Registry on 26 September 2025 to seek further clarification and to progress the filing of her documents. She also attempted to contact the Registry by telephone during this period.

(c) Mr Paulsen stated that she was unable to obtain “realtime” assistance from the Registry on how to correct the deficiencies in her documents, and was instead directed to other avenues, such as contacting the Commission.

(d) Ms Paulsen stated that she took steps to arrange for her affidavit to be sworn or affirmed before an authorised person, which “required coordinating an appointment/availability during business house while in my first week of work”. She also took steps to correct and check the footer in the originating application.

(e) Ms Paulsen stated that she attempted to file the originating application within time, and that the period between 22–30 September 2025 “was spent actively trying to remedy the issues raised by the Registry, while also commencing new employment and having limited capacity to attend during business hours at short notice”. Ms Paulsen stated:

I filed my documents as soon as practicable once I understood the Registry requirements and was able to complete the required witnessing and corrections.

22 It is not in dispute that Ms Paulsen commenced her attempts to file the application well within the 14-day statutory time limit. She took steps to address the formal deficiencies that had prevented her documents from being accepted for filing. In circumstances where Ms Paulsen did not have legal assistance, and where the period in question was relatively short, I consider that she has adequately explained the delay in filing the documents in an acceptable form.

Other factors

23 In the present case, the delay in making the general protections court application is not connected with any action taken by Ms Paulsen to contest the termination of her employment other than by making an application under the FW Act. Accordingly, this factor is not applicable.

24 The City accepts that it would not suffer any prejudice if an extension of time were granted. For such purposes, the relevant prejudice is that caused by the delay, that is, any prejudice which would not have been suffered if the proceedings had been commenced within the 14-day period: see Clarke at [31]. While the absence of prejudice to the City is not of itself a sufficient basis to extend time under s 370(a)(ii), it is not a factor which militates against the grant of an extension in the present case.

25 In relation to the merits of the substantive application, the City accepts that the application contains the essential elements of a general protections claim and is not “plainly unmeritorious or vexatious”: cf. Jusrut v Link Business Services [2024] FedCFamC2G 583 at 55. While it is likely that many of the allegations made by Ms Paulsen will be contested, it is not difficult to discern how her assertions could form the basis of a general protections claim under the FW Act: cf. Chou at 37 For the purposes of the present application, it is not practical to embark on a consideration of the allegations made in the application nor to form a view as to the merits of the parties’ competing positions: Clark e at 34. I consider that the application raises a case that is at least arguable, and cannot be said to have “no ostensible merit and or no real prospects of success”: Chou at 23

26 Taking into account the reasons for the delay in the present case, and the extent of the delay, I do not consider that an exercise of the discretion to extend time would give rise to any unfairness as between Ms Paulsen and other persons (including litigants in person) in a similar position who seek to bring general protections court applications.

27 Finally, I note that, to the extent (if any) that the originating application seeks relief in relation to adverse action other than dismissal, an extension of time under Subdiv A of Div 8 of Pt 3-1 of the FW Act may not be required to bring such claims: see Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [110]–117; AXR54 v SM Adams trading as Piper Alderman [2025] FCA 1509 at [5]–6. In this regard, Ms Paulsen relevantly clams in the originating application that she exercised workplace rights by making complaints and inquiries, and that “[b]ecause she exercised these workplace rights, the [City] took adverse action against her, including isolating her from meetings, refusing to communicate, ignoring or dismissing her complaints, disciplining her for raising concerns, labelling her has [sic] catastrophising, and ultimately dismissing her employment”.

Should an extension of time be granted?

28 Having regard to all of the matters set out above, I am satisfied that it is appropriate to grant Ms Paulsen’s application for an extension of time to make her general protections court application under s 370(a)(ii) of the FW Act.

Conclusion

29 For the reasons set out above, the time within which the originating application was required to be filed is extended to 30 September 2025. I will reserve any question concerning costs.

| I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan. |
Associate:

Dated: 17 April 2026