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

This Federal Court decision is a procedural appeal ruling in a Fair Work matter. It does not tell the full story of the underlying employment dispute. The Court was dealing with a narrower question: the Fair Work Ombudsman had lodged a notice of appeal within the 28-day period after orders were made against it in the court below, but the respondents were not personally served until later. The issue was whether the appeal could still continue.

The parties were the Fair Work Ombudsman as appellant, and New Switch Electrical Pty Ltd together with its sole director, Mark Ladores Tan, as respondents. The earlier orders being appealed were made on 8 October 2025 in the Federal Circuit and Family Court of Australia (Division 2). The appeal notice was lodged on 5 November 2025, which was the 28th day after those orders.

The problem was not the date of lodgment. The problem was service. The respondents had not appeared or participated in the proceeding below, so they had no address for service in that proceeding. That meant the notice of appeal had to be personally served. The Ombudsman's office sent sealed copies by express post and arranged a process server, but personal service was only completed on 20 November 2025 after an unsuccessful attempt on 14 November 2025.

That short delay created a real procedural issue because the Federal Court Rules use the word "file" in a special way. The Court said that, for this appeal rule, "file" meant "file and serve". So even though the notice had been lodged on the last day, the appeal still needed curative relief because service happened outside the 28-day period.

The Court started with Division 36.1 of the Federal Court Rules 2011. Rule 36.01 says a party who wants to appeal must file a notice of appeal. Rule 36.03 is headed "Time for filing and serving notice of appeal" and says an appellant must file a notice of appeal within 28 days after the judgment or order appealed from, unless another date is fixed.

The key interpretive point came from rule 1.51 and the Dictionary in Schedule 1. The Dictionary defines "file" to mean "file and serve". Wheelahan J said that, taken together with the heading to rule 36.03, this meant the 28-day requirement was a requirement to both file and serve the notice of appeal within 28 days. The Court also noted there was no separate rule setting some other time period for service of a notice of appeal.

That was the link the Court drew between the Rules and the deadline problem. The notice of appeal was lodged on time, but because service was not completed until 20 November 2025, the appellant had not complied with the full requirement as the Court read it.

The Court did observe that some rules, such as rules 36.01 and 36.02, read more naturally if "file" is understood as actual filing with the Registry only. But the Court did not need to resolve every conceptual difficulty in the Rules. It was enough that, on the present wording, the appellant needed relief because service had occurred after the 28-day period.

The practical service steps mattered. Once the notice of appeal was accepted for filing, a sealed copy became available to download. A lawyer in the Ombudsman's office then arranged personal service. Because the respondents had not appeared below, rule 36.06 required personal service. There was no existing address for service in the earlier proceeding that could be used instead.

The office also sent sealed copies of the notice by express post to each respondent, and those were delivered on 10 November 2025. But postal delivery did not remove the need for personal service in the circumstances. A process server then attempted personal service on the second respondent on 14 November 2025 and failed. A later attempt on 20 November 2025 succeeded. The Court recorded that this personal service on the second respondent also effected service on the company, referring to section 109X(1)(b) of the Corporations Act and rule 10.02.

After that, the appellant filed an amended notice of appeal on 3 December 2025. The amendment was described by the Court as modest. The amended notice was posted to the company's registered office and to the second respondent's address. The appellant then filed an interlocutory application seeking deemed service and substituted service orders in relation to the amended notice. At a mention, the Court raised whether those orders were necessary, because personal service of an amended notice did not appear to be required in the same way.

More importantly, the Court raised the earlier and more serious issue: whether the original appeal had been effectively instituted given the late service of the original notice. The appellant then changed course and filed a second interlocutory application seeking either dispensation with the requirement to serve within time or, alternatively, an extension of time to 20 November 2025.

That second application was itself carefully served. An unsealed copy of the application and supporting affidavit was personally served on the second respondent on 3 March 2026. A sealed copy was personally served on 7 March 2026, again also effecting service on the company. Written submissions were separately sent by express post and delivered on 13 March 2026. The Court also noted that the respondents had been sent the orders fixing the appeal hearing for 10 April 2026 and had been served with the appeal book and other appeal materials under the timetable.

The Court granted an extension of time for service of the notice of appeal to 20 November 2025 nunc pro tunc. In practical terms, that retrospectively validated the late service. The Court dismissed the earlier interlocutory application filed on 10 February 2026 and reserved the costs of both interlocutory applications to the hearing of the appeal, which remained listed for 10 April 2026.

The reasoning was relatively straightforward. First, the respondents had fair notice of the appeal and of the hearing date. Secondly, they had been served with the extension application, supporting affidavit and written submissions in accordance with the Rules. Thirdly, the delay was short. Fourthly, the explanation for the delay, an oversight in the appellant's office, was brief but unchallenged, and the Court accepted it, especially given that the significance of the Dictionary definition was not obvious unless one traced the Rules carefully. Fifthly, the respondents had not appeared, had not formally objected to the competency of the appeal, and had not opposed the extension application.

The Court also referred to earlier authority under the old 1979 Rules, including Moore v Tooheys Ltd, where an appeal was treated as validly instituted on filing and a failure to serve in time could be dispensed with. But the current Rules are different. They define "file" as "file and serve", and the current extension rule expressly allows an application to be made during or after the period for filing and serving. Wheelahan J considered that an extension of time was the more appropriate relief here, rather than an order dispensing with service.

The direct lesson is procedural discipline. If your business is appealing a decision, do not assume the deadline problem is solved once the notice is lodged. Check whether the Rules require service within the same period and whether personal service is needed because the other side has no address for service in the earlier proceeding. If personal service is required, build in time for locating the person, arranging a process server and making repeat attempts if the first attempt fails.

This case also shows the cost of a short procedural miss. The appellant still obtained relief, but only after filing extra interlocutory applications, preparing affidavit evidence, serving more documents and attending a separate hearing. Even a curable mistake can create delay, cost and uncertainty.

For respondents, the lesson is different but just as important. Keep your registered office details current and monitor incoming mail. Here, the respondents received documents by express post, by courier and by personal service. The Court was satisfied they had fair notice of the appeal and hearing date. A business that ignores those documents may still find the appeal proceeds because the Court can extend time where the delay is short and no likely prejudice is shown.

Finally, this decision is a reminder that procedural arguments depend heavily on the wording of the current Rules. Older cases may still be relevant, but they may have been decided under different rule structures. If your business is relying on a technical point about service or timing, get advice on the current Rules rather than assuming an older authority answers the issue.

The key dates in the judgment are clear. The orders under appeal were made on 8 October 2025. The notice of appeal was lodged on 5 November 2025 and accepted for filing on 6 November 2025, but treated as filed on the day of lodgment. Express post delivery of the sealed notice occurred on 10 November 2025. A first attempt at personal service failed on 14 November 2025, and personal service succeeded on 20 November 2025. An amended notice of appeal was filed on 3 December 2025. The first interlocutory application was filed on 10 February 2026. The second interlocutory application seeking extension of time was lodged on 2 March 2026. Judgment on that application was delivered on 7 April 2026.

The appeal itself was not decided in this judgment. The Court's orders only dealt with the service problem and related interlocutory applications. The appeal remained fixed for hearing on 10 April 2026.

This page is based on the Federal Court of Australia decision Fair Work Ombudsman v New Switch Electrical Pty Ltd (Extension of Time) [2026] FCA 390, delivered by Wheelahan J on 7 April 2026. The judgment is a procedural ruling about service, extension of time and related interlocutory relief in an appeal.

Because the judgment is procedural, it does not provide a full public account of the underlying employment dispute. This explainer therefore focuses on the appeal-service issue, the Court's reasoning and the practical procedural lessons for businesses.