FEDERAL COURT OF AUSTRALIA

Sallehpour v Frontier Software Pty Ltd [2005] FCA 1206

APPEAL – application for extension of time – notice of appeal wholly defective – applicant unable to demonstrate any arguable grounds – futility – application refused

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 followed

MOHAMMADALI SALLEHPOUR v FRONTIER SOFTWARE PTY LTD

VID 277 of 2005

WEINBERG J

26 AUGUST 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The applicant’s motion dated 18 August 2005, appended to his affidavit of that date, be dismissed.

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

3.         There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to file and serve out of time a notice of appeal from a judgment of Marshall J given on 15 March 2005.  By that judgment, his Honour ordered that the present applicant’s application be dismissed, and that the matter of costs be dealt with at a later time, after receiving submissions from the parties. 

2                     The application before Marshall J concerned an allegation by Mr Sallehpour that his employment had been terminated by the respondent for reasons that included:

·               temporary absence from work because of illness within the meaning of the Workplace Relations Regulations 1996 (Cth);

·               mental disability; and

·               national extraction.

3                     Mr Sallepour’s application to the Court was brought pursuant to s 170CP, for an order under s 170CR in respect of alleged contraventions of ss 170CK(2)(a) and (f) of the Workplace Relations Act 1996 (Cth) (“the Act”).  It appears from his Honour’s reasons for judgment that he had considerable sympathy for Mr Sallehpour, and described the case “as a sad one”.  He found that Mr Sallehpour suffered from a depressive illness that affected his ability to perform his duties in a timely manner, as well as his ability to respond to reasonable requests by the respondent to help him overcome, or at least manage, his illness, whilst preserving his employment.  Ultimately, Mr Sallehpour lost his job.  He claimed that this occurred for reasons proscribed by s 170CK of the Act.

4                     Regrettably, Mr Sallehpour was not legally represented before his Honour.  Plainly, and not surprisingly, he had some difficulty in understanding some aspects of the proceeding. 

5                     On 4 April 2005, which was within the twenty-one day period specified by the O 52 r 15 of the Federal Court Rules for filing a notice of appeal, he instead applied for an extension of time within which to file and serve such a notice. 

6                     Mr Sallehpour’s application for an extension of time was supported by an affidavit affirmed on that same date.  The affidavit annexed a letter dated 21 March 2005 from the District Registrar responding to a request by Mr Sallehpour for access to the transcript of the trial before Marshall J.  That request was, at that stage, rejected.  However, Mr Sallehpour was told that he might be able to obtain the transcript by coming to some arrangement with the transcript provider, Spark & Cannon. 

7                     The affidavit also annexed a letter wrongly dated 24 March 2004 (it ought to have been 24 March 2005) from the Disability Employment Action Centre (“DEAC”) renewing a request that transcript fees be waived.  On 30 March 2005, the District Registrar acceded to that request and provided DEAC with an electronic copy of the transcript.  According to Mr Sallehpour, DEAC indicated that it would seek “a second opinion” as to whether there were any grounds to appeal from the judgment of Marshall J.  Apparently a barrister had agreed to review the transcript, but told DEAC that he required time to do so. 

8                     On 18 April 2005 Mr Sallehpour filed a draft notice of appeal.  That draft notice was plainly prepared without legal assistance.  It was headed “Without Prejudice”, and sought orders, inter alia, to“squash” the decision made by the trial judge.  The grounds were stated as follows:

“Denial of Natural Justice.  By that I mean, I was denied with [sic]:

a.  The right to a “Fair Hearing”, and

b.  The right to be Judged by an “Unbiased Justice”.”

9                     In addition, on that same date, Mr Sallehpour affirmed an affidavit in which he deposed that DEAC was no longer assisting him with his case, that he did not know “the valid grounds for a successful appeal process”, and that he was still looking for another “bona fide” free legal organisation to assist him in submitting an appropriate notice of appeal.  He also sought leave to file and serve a notice of appeal out of time, pursuant to O 52 r 15(1)(b) of the Federal Court Rules.

10                  The matter came before me on 20 May 2005.  Mr Sallehpour was not legally represented.  He told me that, for the time being, he had no legal assistance.  He asked for an extension of time to enable him to obtain such assistance.  He said that he needed six months to prepare a proper notice of appeal. 

11                  The matter was complicated to some degree by the fact that, at that stage, Marshall J had not yet ruled upon the question of costs.  However, his Honour did so on 25 May 2005.  The applicant has at no stage sought to appeal against the costs order made on that day.

12                  I made plain to Mr Sallehpour that his draft notice of appeal was entirely deficient.  It alleged a denial of natural justice, and some form of bias against his Honour, but provided no particulars whatever of these complaints.  Mr Sallehpour acknowledged that the notice was defective, but maintained that he could not bring himself to read the transcript of the proceedings before Marshall J, which was something that he would have to attend to, in some way, if he were to pursue these grounds. 

13                  I told Mr Sallehpour that, as part of the process of determining whether to extend time, I had to consider whether his proposed appeal had any prospects of success.  I noted that he claimed that the trial had had a serious effect upon his health, and that he was receiving therapy, and on medication.  I also noted a letter from his treating psychiatrist dated 12 May 2005 suggesting that he needed time regain his health before facing any appeals process.  The consultant psychiatrist suggested that a period of at least six months would be required. 

14                  After hearing from Mr Sallehpour, and counsel for the respondent, I indicated that I was not prepared to adjourn the application for an extension of time for six months.  I said, however, that I would adjourn the application for a period of three months, on condition that at the end of that period Mr Sallehpour file a properly drawn and adequately particularised notice of appeal, containing sufficient information about his case to enable his grounds of appeal to be understood.  I said that if that were not done, his application for an extension of time would stand dismissed.  In effect, I made what can loosely be described as a “self-executing order”. 

15                  Mr Sallehpour then repeated his request for a six-month adjournment.  I again rejected that request.  I said that the respondent was entitled to have some finality in this matter, and that a three-month period within which to draft a notice of appeal seemed to me to be more than reasonable in the circumstances.  I made the following orders:

“1.      The application and notice of motion for an extension of time to file and serve a notice of appeal be adjourned to a further hearing on 26 August 2005 at 9.30 am, conditional upon the applicant filing and serving a properly drawn draft notice of appeal with adequate particulars by 19 August 2005.

2.                  If a properly drawn draft notice of appeal with adequate particulars is not filed and served by 19 August 2005, the application and notice of motion stand dismissed.

3.                  Costs be reserved.”

16                  On 19 August 2005, which was the last available day to avoid the operation of the self-executing order, Mr Sallehpour filed a further draft notice of appeal.  He filed with it an affidavit affirmed on 18 August 2005.  In that affidavit, he said he had done his best to prepare a properly drawn notice of appeal, but was concerned that it may still be inadequate.  He also annexed to that affidavit a notice of motion, that was not filed, seeking additional time within which to lodge his application for an extension of time to file a notice of appeal.  He said in his affidavit, and claimed in his notice of motion, that he had been unable to read the transcript of the trial, and would be unable to do so without suffering “psychological reaction”, and was to that extent prejudiced in the presentation of his case.  He also said that he could not afford legal representation. 

17                  The further draft notice of appeal contains lengthy narrative.  It alleges that Marshall J denied Mr Sallehpour natural justice.  It claims that the way in which his Honour conducted himself led to “strong alarming uneasiness and fear” on Mr Sallehpour’s part, and left him “powerless” and quite unable to present his case. 

18                  Mr Sallehpour then set out, in the notice, in summary form, his allegations of bias.  He claimed, inter alia, that his Honour refused to employ non-technical language during the hearing, failed to make provision for an interpreter to assist him, never addressed the issue of undiscovered material that was necessary to support his case, allowed “hostile witnesses” to be present in court during the hearing, allowed new matters to be raised, rejected some of the evidence he sought to adduce, made a number of “brusque” remarks that disturbed him emotionally, and arrived at his decision mainly on the “hearsay testimony” of the respondent’s key witness.

19                  The draft notice of appeal can hardly be described as lacking in particulars.  However, and regrettably, for the most part they are in a form that is barely intelligible.  It would be difficult, if not impossible, to understand the real nature of the applicant’s complaints from a document expressed in these terms. 

20                  More importantly, Mr Sallehpour acknowledged that he had not, to date, been able to bring himself to read the transcript of the trial.  He said that he would find it difficult, if not impossible, to do so.  In should interpolate that the trial ran for a number of days.  Some reference to just how his Honour was said to have displayed bias, and one or more instances of such bias, were necessary, in my view to enable an assessment to be made of whether the applicant has any sort of arguable case.  Mr Sallehpour maintains that he is unable to provide such information because he cannot turn to the transcript.  That makes it all the more difficult for him to demonstrate that there is any substance to his sweeping and generalised claims of bias. 

21                  As previously indicated, a notice of appeal must be filed within twenty-one days of the pronouncement of the judgment appealed from.  The delay in the present case was certainly not great.  However, the draft notice of appeal upon which the applicant now proposes to rely does not disclose any grounds that appear to me to have the slightest prospects of success.  It is true that there are references to a denial of natural justice, a denial of a fair hearing, and “an appearance of bias”.  Yet nothing in the draft notice comes close to providing any proper statement of such claims.  Indeed, as the applicant himself seems to acknowledge in his affidavit of 18 August 2005, the draft notice of appeal upon which he now relies is wholly inadequate.  In addition, on neither of the two occasions that Mr Sallehpour appeared before me was he able to articulate any arguable ground of appeal.

22                  The respondent submitted that Mr Sallehpour had suffered no unfairness at his trial.  It submitted that the reasons for judgment suggested that, if anything, he was given considerable latitude by his Honour.  One thing is certain.  His complaint about not having been provided with an interpreter is entirely devoid of merit.  The respondent submitted, and Mr Sallehpour did not challenge, the fact that at no point in the trial did he ask for an interpreter.  From my observations of him, he plainly had no need of one. 

23                  The principles that govern applications of this type were discussed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9.  The merits of the case are a relevant factor to be considered.  Where, as in the present case, the grounds of appeal appear hopeless, and the applicant is unable to articulate any arguable basis upon which an appeal might succeed, futility weighs strongly against granting an extension of time within which to file a notice of appeal.  It was for the applicant to persuade me that he had an arguable case.  This he manifestly did not do.

24                  Accordingly, to the extent that there is a motion dated 18 August 2005 before the Court, that motion will be dismissed.  The applicant’s application for an extension of time within which to file a notice of appeal is similarly dismissed.  The respondent did not seek an order for costs.  It is for that reason alone that I will not order the applicant to pay the respondent’s costs. 

Associate:

Dated:              26 August 2005