FEDERAL COURT OF AUSTRALIA

Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to file a notice of appeal be dismissed.

2.    The applicant pay the respondents’ costs of the application.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    This is an application for an extension of time within which to file a notice of appeal against a decision of the Federal Circuit Court delivered on 24 March 2017, dismissing the applicant’s claims for relief against the first respondent, Harbour City Ferries (HCF), and the second respondent, Sydney Ferry Corporation (Sydney Ferries) in respect of alleged contraventions of the Fair Work Act 2009 (Cth) (FWA).

2    The applicant was self-represented, one result of which was that the formulation of the proposed grounds of appeal emerged with some difficulty. Indeed, given these difficulties, I extended considerable latitude to the applicant. At the hearing on 18 September 2017, a significant amount of time was devoted to attempting to identify, with some precision, the metes and bounds of the applicant’s proposed grounds of appeal. Although the applicant, with respect, was articulate and intelligent, the arguments advanced tended to shift around a little like mercury on a plate. In any event, some precision as to what was being argued was eventually reached and I adjourned the matter part-heard to 10 November 2017, and directed that the respondents file and serve submissions directed to additional and reformulated grounds raised by the applicant during oral submissions.

3    By 10 November 2017, submissions had been filed by the respondents, which identified and addressed the case for extension articulated by the applicant on 18 September 2017; the applicant’s submissions in response ran to some 46 pages, much of which was either repetitive or opaque. The hearing resumed on 10 November 2017 and the parties were provided the opportunity to make additional oral submissions. Argument proceeded on the question as to whether the proposed appeal raised grounds which were reasonably arguable so as to justify an extension of time.

B    BACKGROUND

4    The applicant was employed as a casual general purpose hand with Sydney Ferries from 2008. In November 2011, he was offered a 6 week contract which he turned down and thereafter he only worked one more shift for Sydney Ferries, in February 2012.

5    In July 2012, HCF took over responsibility for running passenger ferry services on the Parramatta River and Sydney Harbour (transition). In furtherance of the relevant agreement between the respondents, in May 2012, the applicant was offered (and accepted) employment as a casual general purpose hand with HCF on the same terms as his previous employment with Sydney Ferries.

6    In early July 2012, the applicant was offered a permanent position by Sydney Ferries which, if accepted, would have led to the applicant’s permanent employment with HCF after the transition. He did not accept the offer and it was subsequently withdrawn. Thereafter, at some stage between July and October 2012, the applicant’s name was removed from a list of casual employees maintained by HCF. As will become evident, the timing and circumstances in which this occurred is said to be a central aspect of the proposed case on appeal.

C    PRIMARY JUDGE’S DECISION

7    Before the primary judge, the applicant contended that the respondents contravened a number of the general protection provisions in the FWA. In the proceedings below, the applicant also joined Mr Craig Rieck, who was the “General Manager of Operations” of the respondents at the relevant times. The primary judge properly rejected the direct claims advanced against Mr Rieck as he was never, and was never going to be, the applicant’s employer.

8    The applicant’s first claim was that Sydney Ferries took adverse action against him, contrary to s 351 of the FWA, because he had family and carer’s responsibilities. The relevant adverse action was the failure to allocate shifts, and moving the applicant from one list of casual employees (Pool A) to a different list (Pool B). In short, Pool A casuals were typically more senior and were allocated shifts before Pool B casuals (see [24]-[26]).

9    In rejecting the claim, the primary judge found that there was no obligation on Sydney Ferries to offer any shifts to any particular casual (at [20]). His Honour accepted the evidence led by the respondents in respect of the process for the allocation of shifts, in particular that whether or not someone had family or carer’s responsibilities, or had made a complaint or enquiry, was not taken into account in the allocation of work (see [21]-[38]). His Honour’s primary conclusion was that no adverse action had been taken (at [59]). In the alternative, his Honour found that if there was adverse action, it was not taken because the applicant had exercised a workplace right (at [60]-[63]).

10    The second claim was that Mr Rieck failed to provide the applicant with requested roster information after the applicant had received the offer of permanent employment from Sydney Ferries in early July 2012. It was said that the applicant required the information to organise day care for his child and because he needed leave in October 2012 to attend to family commitments. As this information was not forthcoming, he was not able to accept the offer and it was subsequently withdrawn. The applicant contended that the failure to provide this information injured his employment because of his family and carer’s responsibilities.

11    The applicant failed in this contention on a number of bases. The primary judge was not satisfied that there was any adverse action; an offer of employment had been made and was withdrawn when it was not accepted. Neither was the primary judge satisfied that the applicant had in fact raised his family and carer’s responsibilities in connection with the offer of permanent employment. Alternatively, if there had been adverse action, the primary judge was not satisfied that it was taken because the applicant had family and carer’s responsibilities. The primary judge’s view was that the evidence showed that the applicant’s real concern was that he had booked a holiday for a friend’s wedding in October 2012, and his Honour found that the claim was fabricated ([65]-[82]).

12    The third claim was that HCF took adverse action by withdrawing an offer of permanent employment, failing to offer the applicant any shifts and removing him from the “Seniority casual list” and failing to issue a return to work order or “abandonment of employment notice”. The prohibited reason identified was that the applicant was entitled to request a change in working arrangements (in accordance with s 65 of the FWA) and to make complaints and enquiries about his employment (in accordance with ss 340 and 341 of the FWA).

13    As with the second claim, the primary judge was not satisfied that the applicant had raised family responsibilities with Mr Rieck in July 2012 in relation to the offer of permanent employment (at [87]). Further, the primary judge accepted Mr Rieck’s evidence that the withdrawal of the offer was because the offer had not been accepted before it was due to commence and that the withdrawal of the offer had nothing to do with the applicant’s family and carer’s responsibilities (at [92]-[93]). The primary judge preferred the evidence of the respondents regarding the allocation of work and found that the applicant’s request for roster information had no bearing on the lack of any offer of casual employment (at [96]).

14    In respect of the removal of the applicant from the seniority casual list, the primary judge accepted the evidence of Mr Rieck that in about October 2012, he removed the applicant from his working copy of Pool B casual employees in accordance with his understanding that the applicant was no longer employed by HCF and that this had nothing to do with the applicant’s family and carer’s responsibilities or his workplace rights (at [99]).

15    The fourth claim was an assertion that HCF had coerced the applicant, contrary to s 355 of the FWA, on the basis that during negotiations in 2013 it allegedly offered to reinstate the applicant at the bottom of the Pool B list of casual employees. The applicant asserted that this amounted to coercion as it left him with no choice but to accept a lower position than the one to which he was entitled.

16    The primary judge found that there was no evidence that HCF had made such an offer (at [108]). In any event, the primary judge found that even if the offer had been made, it was made to resolve a dispute and did not satisfy the elements of coercion, which require the negation of choice and the use of unlawful, or illegitimate or unconscionable means (at [111], citing Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 245 FCR 39; (2016) 258 IR 396 at [174]).

17    The fifth claim was an allegation that HCF had made misleading claims about the applicant’s workplace rights, contrary to s 345 of the FWA. This was said to arise because Mr Darrin Moy, the so-called “General Manager of People and Culture” of HCF, had said that he had been told that offering the applicant shifts was difficult and that he was generally not available when requested. It was further alleged that Mr Moy had, in November 2013, promised to provide the applicant with telephone records, which were never produced.

18    As this last claim went beyond the scope of the applicant’s case, leave to raise the argument was not granted by the primary judge (at [116]). In any event, the primary judge was of the opinion that the argument was “hopeless” as there was no evidence that Mr Moy had not been advised of the difficulty in offering shifts to the applicant (at [117]), and because the future production of telephone records had nothing to do with workplace rights (at [118]).

D    PROPOSED GROUNDS OF APPEAL

19    What emerged from the exercise I briefly described at [2]-[3] above was a more precise formulation of the proposed grounds of appeal. It is important to note at the outset that the applicant’s core complaint in relation to the substance of the primary judge’s decision is that the primary judge’s finding that a decision was made in October 2012 to remove the applicant’s name from the list of casual employees was erroneous in circumstances where there was evidence showing that he was removed at an earlier stage. The applicant contends that because of this erroneous finding, the primary judge:

(a)    erred in failing to find that Sydney Ferries took adverse action against the applicant because he had family and carer’s responsibilities (Ground 1);

(b)    erred in failing to find that HCF took adverse action against the applicant by removing him from the list of casual employees without consultation in July/August 2012 (Ground 2);

(c)    erred in failing to find that HCF had coerced the applicant into not exercising a workplace right because it had removed him from the list of casual employees (Ground 3);

(d)    erred in failing to find that HCF had made misleading claims regarding the applicant’s workplace rights because it asserted that he had been removed from the list of casual employees after not having performed shifts (Ground 4).

20    The applicant also challenges the conduct of the proceedings before the primary judge. He contends that the primary judge denied him procedural fairness (Ground 5) by:

(a)    failing to adjourn the hearing to allow him to obtain the telephone records of the respondents;

(a)    failing to provide him with the opportunity of re-examining himself and calling evidence in reply;

(b)    failing to allow him to tender a USB drive containing documents;

(c)    failing to provide him with the opportunity of providing written closing submissions;

(d)    failing to grant an adjournment of the hearing to allow the applicant to amend his application.

E    CONSIDERATION

E.1    Relevant principles

21    In accordance with FCR 36.03(a)(i), a notice of appeal must be filed within 21 days. A party wishing to extend the time within which to file a notice of appeal must make an application pursuant to FCR 36.05(1), which must be accompanied by, inter alia, an affidavit explaining the delay and a draft notice of appeal (see FCR 36.05(3)(c) and (d)).

22    The relevant principles are well understood and were explained in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J (and recently summarised and applied in CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354 per Perry J). Relevant considerations on such an application include length of delay, whether there is an acceptable explanation for delay, prejudice to respondents and (in the sense explained below) the arguability of the substantive appeal.

23    In considering what might broadly be described as the ‘merits’ of the substantive appeal, the authorities make plain that the proposed grounds should be considered on their face and examined at a “reasonably impressionistic level” and that the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at 597-598 [62] per Mortimer J, approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at 486 [38] (Tracey, Perry and Charlesworth JJ). See also CTY15 at [5]. I have approached the determination of the application in this way. I should pause to remark that it did become necessary to examine the arguments at a somewhat more granular level than usually would be the case on an extension of time application because this was the only way I considered I could adequately capture and then attempt to comprehend the precise nature of the applicant’s complaint – it is much easier and quicker to undertake an impressionistic assessment of the merits of an appeal with an orthodox draft notice of appeal and the cogency that comes from structured submissions from a legal practitioner. Having said this, in reaching a decision as to whether it is in the interests of the administration of justice to extend time, I was conscious of the balance between allowing an unrepresented litigant every reasonable chance to articulate the nature and principal details of his proposed complaint, without allowing the application to transmogrify into a de facto full hearing of the appeal. I come back to this topic at the conclusion of these reasons.

E.2    Acceptable reason and prejudice

24    The primary judge’s decision was handed down on 24 March 2017. Ordinarily, the expiry of the 21 day period within which to file a notice of appeal would have occurred on 14 April 2017. However, given that 14 April 2017 was Good Friday and 17 April 2017 was Easter Monday, the expiry of the period within which a notice of appeal could be filed was extended to 18 April 2017 in accordance with FCR 1.61(4).

25    In his affidavit filed on 28 July 2017, the applicant deposes to attending the registry of this Court on 18 March 2017 (I infer that the reference to ‘March’ should be ‘April’) and that he was advised by the registry staff that he needed to correct the documents he was attempting to file in the one hour before closing or that he could attend the registry the next day to file an extension of time application. The applicant adopted the latter course.

26    I accept the applicant’s explanation for the delay. Counsel for the respondents, with respect sensibly, characterised the delay as “small”. Insofar as prejudice is concerned, I am of the view that an extension of time will not result in undue prejudice. Indeed, the respondents have not pointed to any real prejudice and accepted that, ultimately, an assessment of the arguability of the proposed grounds of appeal will be determinative. In summary, given the short delay and absence of real prejudice, I would grant leave to extend time if I considered the appeal had any reasonably arguable merit.

E.3    Arguability of the proposed grounds of appeal

27    I now turn to considering, at a reasonably impressionistic level, the proposed grounds of appeal I have set out at [19]-[20] above.

E.3.1    Ground 1

28    The applicant’s contention is that the finding made by the primary judge that there was a decision made in October 2012 to remove the applicant from the list of casual employees, led the primary judge into error. The respondents say that the alleged erroneous finding could not conceivably have had any bearing upon the primary judge’s determination of the adverse action claim.

29    The primary judge accepted Mr Rieck’s evidence that “in or about October 2012, I removed [the applicant] from my working copy of the Pool B list” of casual employees, in accordance with his usual practice in undertaking sporadic clean-ups of the casual roster (see [99]-[100], emphasis added). The primary judge, in making the finding that in about October 2012 a decision was made to remove the applicant’s name from the list, evidently relied upon this evidence. This finding is alleged by the applicant to be wrong because it is said to be inconsistent with contemporaneous records tendered at the hearing, being two versions of the Pool A and Pool B lists from July 2012, and a list from November 2011, which did not show the applicant’s name, the inference being that the removal of his name occurred significantly earlier than the primary judge found.

30    Turning to the consideration of the importance of the finding, the following is relevant:

(a)    at [15]-[20], the primary judge found that, pursuant to the terms of the Sydney Ferries Maritime (AMOU and MUA) Agreement 2009, there was no obligation on Sydney Ferries to offer any shifts to any particular casual;

(b)    at [21]-[38], the primary judge considered in considerable detail the evidence led by the respondents as to the process followed for shift allocation (initially at Sydney Ferries and, post-transition, at HCF). This evidence established that there was a process whereby casual employees were moved to the bottom of the list of casual employees if they were not contactable. Further, the evidence given on behalf of the respondents was that whether or not someone had family or carer’s responsibilities had nothing to do with the allocation of shifts. The primary judge accepted that evidence (at [29] and [30], and [37] and [38]) and ultimately found that there was no adverse action (at [59]);

(c)    in the alternative (at [60]-[63]), the primary judge rejected the contention that Sydney Ferries’ failure to offer the applicant work after November/December 2011 (with the exception of one occasion in February 2012) was because the applicant had exercised a workplace right. His Honour accepted the respondents’ evidence that in the allocation of shifts no regard was had to the family and carer’s responsibilities of the casual employee in question;

(d)    finally, the primary judge accepted Mr Rieck’s evidence that he was unaware of any family and carer’s responsibilities held by the applicant until he received a letter from the applicant dated 24 May 2012 (at [63]).

31    In his further written submissions, the applicant alleges that adverse action was constituted by the removal of his name from the list of casual employees in July 2012 (as established by the contemporaneous record) because he had a workplace right, being a right to offers of ongoing casual work. As to this, the respondents say: first, this was not the case run before the primary judge, and that they have not had the opportunity of obtaining instructions as to the reason for the applicant’s absence from the July 2012 lists; secondly, that the applicant made a forensic choice not to amend his originating application to include this allegation; and, thirdly, in any event, the date of removal is plainly irrelevant as it does not affect the finding that it was not action taken for a prohibited reason.

32    It seems to me that these matters, pointed to by the respondents, present insuperable difficulties for the applicant.

33    First, with respect, the reasoning of the primary judge was pellucid: his Honour was not satisfied on the evidence that the applicant turned down work due to family and carer’s responsibilities. As recounted by his Honour, it was the applicant’s “prerogative to knock back work offered at short notice on Christmas Eve and New Year’s Eve” in 2011, however that “there is nothing whatsoever to give rise to the suggestion that the consequent failure by Sydney Ferries to offer [the applicant] work (with the exception of one occasion in February 2012) was for the reasons suggested by [the applicant]” (at [62]). In the alternative, his Honour was satisfied on the evidence of Sydney Ferries that “at no stage in determining who was and who was not offered casual work for a particular shift, was any regard had to the family responsibilities, or lack thereof, of the casual employee in question”, and that the employees of Sydney Ferries followed the process described at [30(b)] above (see [62]).

34    As to the adverse action allegedly constituted by moving the applicant from the Pool A list to the Pool B list (see [8] above), the primary judge accepted that “the basis upon which Mr Rieck proposed to move Mr Cross from Pool A was upon his understanding of what he had been told about Mr Cross, and no other reason. That is, that Mr Cross had been difficult, if not impossible to contact. I accept his evidence that he had no knowledge of Mr Cross personally and, in particular, that he was unaware of any family responsibilities held by him until Mr Cross replied to his letter of 4 May 2012” (at [63]). This passage demonstrates that the finding as to the decision taken in October 2012 to remove the applicant’s name from the list of casual employees was simply not relevant to the finding that the applicant had failed to show that adverse action was taken by Sydney Ferries against him because he had family and carer’s responsibilities.

35    Secondly, in any event, to the extent that the applicant points to the discrepancy between the absence of his name from the discovered lists of casual employees for July 2012 and Mr Rieck’s testimony, this cannot rationally advance his case run below. The primary judge evidently accepted Mr Rieck’s evidence (partly extracted at [29] above) and relied upon it in making the finding as to a decision made in October 2012 to remove the applicant’s name from the list of casual employees; this evidence was not challenged by the applicant. On the other hand, there was no evidence before the primary judge as to who created the discovered lists, or the reason for the discrepancy between Mr Rieck’s evidence and the discovered lists. Much less was there evidence about whether a conscious decision had been made to remove the applicant’s name in July 2012 or any earlier stage, or whether his omission was, for example, an administrative oversight.

36    Thirdly, it is important to consider the conduct of the case below. Before the primary judge, the applicant sought to raise a new allegation that he was removed from the list of casual employees in July 2012 because he had a workplace right constituted by a right to ongoing casual employment. The primary judge expressly raised the issue of amendment to include this allegation during the hearing. Before the primary judge, the respondents objected to the amendment and indicated that an adjournment would be required to obtain further evidence from relevant decision-makers. When faced with the prospect of an adjournment to allow the respondents to investigate the new allegation, the applicant’s position was “I say that we will proceed as originally, if it’s going to cause…inconvenience to the respondent…we will proceed, your Honour” (Court book, page 137). The applicant did not seek leave to amend the claim to rely on the new allegation raised, nor did the primary judge grant leave for him to do so (Court book, pages 136-7).

37    It follows that I do not consider that there is any arguable error in the primary judge’s finding and conclusion with respect to the adverse action claim against Sydney Ferries. Even assuming the finding that a decision was taken in October 2012 to remove the applicant’s name from the list of casual employees was incorrect, it is not reasonably arguable that the conclusion in respect of adverse action would be altered by a different factual finding as to the date of removal.

E.3.2    Ground 2

38    For similar reasons, I do not consider that this proposed ground has any arguable merit.

39    First, the primary judge found that the absence of offers of work was by operation of the procedure followed by HCF in allocating work, rather than for any prohibited reason (at [98]).

40    Secondly, the applicant has not established why it is arguable that the finding as to the timing of his removal from the list of casual employees maintained by HCF had any effect on the primary judge’s decision. It will be recalled that the adverse action case was rejected as the primary judge found that the applicant’s request for roster information was in connexion with his desire to have a holiday later in 2012 and had no bearing on the lack of any offer of casual employment by HCF (at [96]).

41    Thirdly, insofar as the applicant seeks to impugn Mr Rieck’s credit as part of an attack on the acceptance of Mr Rieck’s evidence as to an absence of a prohibited reason, such that the primary judge should not have accepted his evidence, this attack is misconceived. Mr Rieck was simply not challenged in respect of the following aspect of his evidence (Court book, page 442):

[25] In or about October 2012, I removed Craig Cross from my working copy of the Pool B list. The sole reason I did this was because, to the best of my knowledge, Craig Cross no longer worked with HCF. I undertake sporadic clean-ups of the casual roster because, due to the nature of casual employment, casual employees sometimes move on to other jobs without advising HCF. This often occurs in the lead up to summer, which is HCF’s busiest period. My standard practice is to discuss with the SAOs when a particular casual employee last worked, check pay records, and if the casual employee has not worked for two or three months or longer they will be removed from the list. I believe I would have followed this process when I removed Craig Cross’ name from my working copy of the casual list.

[26] The fact that Craig Cross had family or carer’s responsibilities, was entitled to the benefit of a workplace instrument or had workplace rights was not a reason for me removing him from the Pool B list.

[27] I am not aware of Craig Cross making a request for flexible working arrangements.

[28] I did not take any action against Craig Cross because he had a workplace right, was entitled to the benefit of a workplace instrument or could make or had made a complaint to seek compliance with a workplace instrument.

(Uncorrected, emphasis added)

42    The difference, if any, between Mr Rieck’s “working copy” and any other list of casual employees maintained by HCF, including those tendered at the hearing before the primary judge, was wholly unexplored. There was no direct attack on Mr Rieck’s credit in cross-examination in relation to the evidence about the absence of the applicant’s name from the lists of casual employees that were tendered, nor was there any direct challenge to his evidence as to his motivations. Moreover, there being no relevant challenge to Mr Rieck’s evidence, and that evidence not being inherently incredible, there was no impediment to the primary judge accepting it: see Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J agreeing and Murphy J generally agreeing). It follows, in my opinion, that no arguable error is demonstrated.

E.3.3    Ground 3

43    The primary judge rejected the applicant’s claim that HCF attempted to coerce him by offering to reinstate him at the bottom of the Pool B list of casual employees (at [111]). The case now proposed to be run on appeal is that HCF attempted to coerce the applicant to not exercise a workplace right by removing him from the list of casual employees.

44    The new case was not run before the primary judge and there can be no error by the primary judge in not dealing with it.

45    In any event, in my opinion the new case sought to be advanced suffers from inherent deficiencies. In circumstances where the applicant had not performed work for the respondents since February 2012; did not contact HCF for shifts (Court book, pages 116, 120); was offered (and rejected) permanent employment in July 2012; and where it is not in dispute that at some point between July 2012 and October 2012 he was removed from the list of casual employees, there is simply no basis for concluding that the applicant was denied any choice by the use of unlawful, illegitimate or unconscionable means, as required to establish coercion: Esso Australia at 245 FCR 39, 84 [174] per Buchanan J (Siopis J agreeing).

46    This proposed ground has no arguable merit.

E.3.4    Ground 4

47    The misrepresentations advanced before the primary judge were: first, that in saying that the applicant did not contact HCF for shifts, HCF made misleading claims regarding his workplace rights; and secondly, by stating that he was removed from the list of casual employees because he did not perform shifts, HCF made further false claims about the applicant’s workplace rights. Leave to raise further misrepresentations was not granted by the primary judge.

48    The primary judge dealt with this claim as follows (at [114]):

It is difficult to understand why this claim is made. The two representations alleged to have been made concerned facts that were not in issue: first, Mr Cross did not contact HCF for shifts. It was his case that he did not have too, that shifts were offered by “the book” who would call when there were shifts available; and secondly, Mr Cross, on his own claim, did not perform work for HCF. Indeed, at the time he was removed from the casual list, he had not performed any work as a General Purpose Hand on ferries in Sydney since February 2012.

49    There is no arguable error in the reasoning of the primary judge. Moreover, it was never explained how the alleged error of the primary judge in relation to the date of removal could have any conceivable bearing on the primary judge’s conclusion. This proposed ground has no arguable merit.

E.3.5    Ground 5

50    The applicant proposes challenging the conduct of the proceeding below by the primary judge, alleging that he was denied procedural fairness by the primary judge.

51    In Italiano v Carbone [2005] NSWCA 177, Basten JA observed at [88] that:

An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness (sic) it is usually necessary to show that a claimant “lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”, as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations.” : at [37].

52    A party must be afforded the opportunity to advance his or her case reasonably and fairly by the tendering of evidence and the making of submissions; there can be no relevant hearing unless an applicant is afforded natural justice or procedural fairness: see Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79 at [19] per Tobias AJA (Meagher and Emmett JJA agreeing).

53    Bearing these principles in mind, I will consider whether there is any arguable merit in the alleged denials of procedural fairness.

Ground 5(a)    Telephone records

54    The applicant contends that the primary judge denied him procedural fairness by failing to grant an adjournment of the hearing to allow him to subpoena the correct telephone provider of the respondents, in order to obtain evidence to show that no attempt was made to contact him to offer shifts.

55    The respondents say that this cannot disclose error as no positive evidence was led on behalf of the respondents that they did in fact try to contact the applicant. Rather, each of the relevant witnesses gave evidence of the process ordinarily followed for the allocation of shifts and gave specific evidence that they could not recall speaking with the applicant. Moreover, the respondents did not deny the applicant’s proposition that he was not contacted for shifts in the relevant period; their case was to deny that the alleged adverse action was because of any workplace right. Further, the telephone records could not have assisted the applicant in impugning the evidence of the respondents’ witnesses, or his misrepresentation case based on what he was told by Mr Moy.

56    Before the primary judge, the applicant explained that he had subpoenaed Telstra based upon information he had been given by HCF, in order to obtain telephone records. It was the applicant’s position that these documents were integral to his case (Court book, page 81), namely in supporting the contention that Sydney Ferries and HCF never did in fact contact him for shifts. He asserted that in the week before the commencement of the hearing before the primary judge, he had been told by Telstra that the records he was seeking access to were held by a different carrier. The following exchange then occurred (Court book, pages 80-1):

His Honour: So what do you want me to do about that?

Mr Cross: I just propose that I would like you to take it into account when you’re making your judgment if I could subpoena them in the lapse of time that we have the correct entity so you could actually take that into consideration when you make your judgment.

His Honour: So you’re applying for…one, leave to issue another subpoena and, two, to adduce any evidence that arises from the subpoena.

…

Mr Mahendra: Your Honour, as you would know this case has been on foot for a significant period of time. Mr Cross has had ample opportunity to obtain the documents he was after. We would object to any evidence going in post the two day hearing that has been set down. This isn’t a complicated case; it isn’t one that requires volumes of documents in order to prove a point. The evidence that Mr Cross seeks to adduce is an assertion that he wasn’t contacted by Sydney Ferries or Harbour City Ferries for a period of time. If the respondents can’t produce evidence to contradict that then that’s a matter for the court to decide based on what has occurred. The – if there are phone records to verify one way or the other whether he was contacted one would think that Mr Cross would have, one, access to those records already or, two, have sought production of those documents well and truly in advance of today’s hearing. So we would be objecting to the reopening of the applicant’s case – if I can call it that – following the close of his evidence today.

His Honour: In order for you to get that evidence, Mr Cross, it will mean that the case will have to be adjourned.

Mr Cross: It’s very integral to ---

His Honour: If the case is adjourned you will pay the costs of the adjournment and you will pay them forthwith; that mean’s (sic) immediately.

57    The applicant thereafter indicated that the matter would have to proceed as he did not have the funds to pay such a costs order if it were made (Court book, page 81).

58    While I hold considerable sympathy for the primary judge given the unstructured and confusing way the applicant ran his case below, with respect, it is a little difficult to see why a threat of a special costs order, in the terms in which it was proposed, was justified in the circumstances (at least without exploring whether there was substance in the contention of the applicant as to why he had been diverted from subpoenaing the correct records earlier). If the telephone records could have been material to the disposition of the application, on an impressionistic basis, I would have been inclined to consider that there was at least some potential merit in an argument that the applicant ought to have been granted the opportunity of issuing a subpoena to the correct entity, in order to be in a position to obtain those records for the purpose of tendering those records in his case at the hearing. But in the end, the complaint goes nowhere as it is not reasonably arguable that the applicant was denied the opportunity to advance his case reasonably and fairly by allowing records to be obtained for the tender of relevant evidence.

59    First, it was never explained how the absence of the telephone records could conceivably impact upon the disposition of the applicant’s adverse action claims; the primary judge was simply not persuaded that the applicant had established that adverse action was taken, or that any adverse action was taken for a prohibited reason.

60    Secondly, with respect to the alleged misrepresentation by Mr Moy, Mr Moy gave evidence of what he was told. As the primary judge properly stated (at [117]) there is no evidence that he was not told that the applicant was difficult to contact.

61    Thirdly, the telephone records could not have enabled the applicant to challenge successfully the credibility of the respondents’ witnesses. This is because, as the respondents point out, no positive case was advanced by them that they had in fact contacted the applicant; the evidence given by the witnesses for the respondents was as to the course ordinarily adopted for the allocation of shifts, but that they could not specifically recall contacting the applicant (Court book, pages 418, 466, 495).

62    It follows that this proposed ground of appeal does not have any arguable merit.

    Ground 5(b)    Re-examination and evidence in reply

63    The applicant’s contentions appeared to be advanced on two bases, namely, that he was denied the opportunity of re-examining himself, and that he was denied the opportunity of adducing evidence in reply. The applicant’s contentions are misconceived.

64    In respect of re-examination, the applicant was expressly informed by the primary judge of the process to be followed (Court book, pages 76-7). The primary judge explained:

His Honour: You will be cross-examined.

Mr Cross: Yes.

His Honour: And then you can give brief evidence in reply if necessary. And then we will move into the respondents’ evidence…

(Emphasis added)

65    Following cross-examination of the applicant, the following exchange occurred (Court book, page 124):

His Honour: Mr Cross, you can step down now.

Mr Cross: Okay

Mr Mahendra: You Honour, there’s no cross-examination of the applicant’s other witness. I will leave it in Mr Cross’ hands as to how he wants to close his…evidentiary case.

His Honour: Mr Cross, that constitutes your evidence… As I recall – correct me if I’m wrong – but the only outstanding matter is this amendment to your application. Is that right?

Mr Cross: Yes, your Honour.

His Honour: Right. Well, if that’s the end of your evidence, then we will now move on to Mr Mahendra’s case. Mr Mahendra.

66    At the hearing of this application, I invited the applicant to explain what his case in respect of this aspect was and to identify what evidence he was prevented from adducing in re-examination (Transcript, 18 September 2017, page 31). The applicant pointed to four matters: a line of cross-examination being irrelevant; an allegation that he was prevented from clarifying a previous statement to the effect that he did not plan to work in the maritime industry, which was evidently seized upon by the respondents to put the proposition that the applicant did not intend on working in the maritime industry; to clarify his interpretation that the 24 May 2012 letter was in connexion with his day care and family and carer’s responsibilities; and, the fact that the primary judge made strong adverse credit findings in circumstances where the applicant was not afforded the opportunity of re-examining himself.

67    These complaints go nowhere. As to the first matter, irrelevancy is an objection and the applicant answered the questions asked; it was incumbent upon him to raise the objection at the time the question was asked. As to the second matter, the applicant indicated that he would have given evidence contrary to the proposition, namely, that he had subsequently accepted an offer of employment from HCF and had subsequent discussions with Mr Rieck regarding the offer of permanent employment; the difficulty for the applicant is that, as he conceded before me (Transcript, 18 September 2017, page 35-6), this evidence was already plainly before the primary judge. The clarification which the applicant points to in the third of these matters was, in fact, given by him in evidence (Court book, page 122-3). As to the fourth matter, no fair reading of the transcript supports in any way an assertion that the applicant was shut out from clarifying his evidence. Indeed it is fair to say that there was no real distinction drawn by the applicant in providing submissions and evidence to the primary judge (as might be expected in circumstances of a self-represented litigant).

68    In respect of the complaint that he was prevented from adducing evidence in reply, the applicant says that he wasn’t afforded the opportunity to “recross-examin[e]” certain witnesses, and that he wasn’t able to cross-examine witnesses on the telephone records he was unable to adduce in chief. A preliminary observation to make is that the applicant was unable to identify any other witnesses he would have called in reply after the close of the respondents’ case (Transcript, 18 September 2017, page 38).

69    In respect of the tender of the telephone records, the applicant says that he would have cross-examined on those documents in order to contradict the assertion in the respondents’ evidence that contacting the applicant was difficult or impossible, and to prove that Mr Moy had misrepresented that the applicant had been contacted for shifts (Transcript, 18 September 2017, page 42). Leaving aside the fact that strictly speaking this is not really a complaint about an inability to adduce reply evidence (except in circumstances where the applicant would have deferred the tender of the telephone records until reply) again, as explained above, this point goes nowhere. As already outlined at [58]-[61] above, despite my misgivings in respect of the primary judge’s expression regarding the special costs order, the telephone records were not material. Even assuming relevance, for completeness it should be noted that while the applicant may not have been able to cross-examine witnesses on the primary records, he was not relevantly prevented from cross-examining the witnesses as to their recollection that they did not contact him, or whether or not they actually did attempt to contact him. This ground is not reasonably arguable.

Ground 5(c)    Tender of USB drive

70    The applicant complains that he was denied procedural fairness because the primary judge failed to accede to the tender of a USB drive containing copies of casual employee lists.

71    Again, the lack of merit in this point becomes clear when the relevant context of the proceeding before the primary judge is examined (Court book, page 95):

Mr Cross: …There’s a whole USB stick, you Honour. And there’s the document here.

His Honour: I’m not going to look through a USB stick. You have to point to a particular document and show me that it’s relevant.

Mr Cross: Yes, I’ve got the documents just here that I referred to just then.

(Emphasis added)

72    This passage demonstrates that the primary judge was not content to receive the USB drive into evidence holus bolus without being taken to the particular document which the applicant wished to tender. This is hardly surprising. Moreover, the passage also indicates that the applicant failed to alert the primary judge that he wished to tender additional evidence beyond those copies of the discovered lists which he in fact tendered in hard copy. It was not for the primary judge to advance the case for the applicant by wading through computer files tendered indiscriminately to ascertain material that may have assisted the applicant. This ground has no merit.

Ground 5(d)    Written closing submissions

73    This point is also unarguable and can be dealt with shortly. The applicant was provided with ample opportunity to make oral submissions before the primary judge (Court book, pages 166-72, 176-183). In this Court, the applicant has not identified any detriment or lost opportunity to put any information or argument as a result of not being instructed by the primary judge that he could provide written closing submissions. I am not satisfied that it is reasonably arguable that the primary judge denied the applicant procedural fairness in failing to provide a direction that he could provide written closing submissions.

Ground 5(e)    Failure to grant adjournment to amend

74    This issue arose in the context of the additional argument raised by the applicant that the respondents took adverse action by removing his name from the list of casual employees in July 2012. The argument was raised at the hearing before the primary judge (Court book, pages 134-7). After hearing from the applicant as to why the amendment was being sought, the following exchange occurred (Court book, pages 136-7):

Mr Mahendra: We’re not in a position to address it now, your Honour. If the amendment is allowed we would seek an adjournment in order to obtain evidence from the relevant decision-makers. It’s not something that Sydney Ferries – and it appears as though this allegation is being put against Sydney Ferries not the first and third respondent. Sydney Ferries would need to make inquiries as to how it is that Mr Cross was removed from the list and if any relevant witnesses can be called to give evidence as to that issue.

His Honour: Mr Cross?

Mr Cross: I guess if it brings up difficulties, as you say, I guess we would proceed without, if that’s the easier way to do it.

His Honour: It’s not about the easier way. I have to do justice between the parties. If you say that it’s fair that you should be allowed to make the amendment now, because you weren’t aware of it earlier, well, that’s your submission. But I also have to look at the other side’s case; what they will have to do in order for the proceedings to be fair. Mr Mahendra says in order for the proceedings to be fair he would need, on behalf of Sydney Ferries, to make inquiries about the reason for which the list which is attached to Mr Henry’s affidavit – and he doesn’t say anything about the removal of your name from the lists in November 5 and December of 2011, and he can’t do that today.

...

His Honour: So he would need an adjournment. So what do you say about that?

Mr Cross: I say that we will proceed as originally, if it’s going to cause…inconvenience to the respondent, your Honour, and not being fair; we will proceed, your Honour.

75    As is clear from this exchange, the primary judge explained that a consequence of the amendment foreshadowed by the applicant would likely be an adjournment of the hearing to allow the respondents to address the claim. There can be no criticism of the primary judge’s explanation in the circumstances. It is clear that, faced with the prospect of an adjournment, the applicant decided to proceed without amending his application. He did not seek an adjournment for his amendment. Accordingly, the applicant’s claim that he was denied procedural fairness because he was not granted an adjournment to amend his application is wholly without merit.

F    CONCLUSION & ORDERS

76    The proposed grounds of appeal are all devoid of arguable merit.

77    The applicant indicated that if an extension were granted he would likely be represented on any appeal. This would allow proper and further consideration of the merits of the grounds of appeal. In considering whether, in the exercise of discretion, I should extend time, it is necessary to keep in mind a careful distinction between grounds that are hopeless (in the sense of not being reasonably arguable) and destined to fail, and those which are properly described as being weak: see SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [84] per Wigney J; Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 per French J. For reasons I have explained, the proposed grounds of appeal fall into the former category and it would not, in that circumstance, be a proper exercise of discretion to extend time. Indeed to do so would be to allow an appeal to be brought, devoid of merit, in a way which would be inimical to the case management objectives in Part VB of the Federal Court of Australia Act 1976 (Cth).

78    The application must be dismissed with costs.

Associate:

Dated:    29 December 2017