FEDERAL COURT OF AUSTRALIA

Liongson v Olims Canberra Hotel [2009] FCA 1291

CARL LIONGSON v OLIMS CANBERRA HOTEL

No ACD 30 of 2009

FINN J

11 NOVEMBER 2009

ADELAIDE (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1.         The applicant/appellant is granted leave to file and serve a Notice of Appeal on or before Wednesday, 25 November 2009. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          The applicant/appellant, Carl Liongson, seeks leave to appeal against an order of a Federal Magistrate dismissing his application in consequence of a conclusion arrived at on the hearing of a preliminary question in that proceeding.  The original application was brought for relief under s 665 of the Workplace Relations Act 1996 (Cth) in respect of a claim that Mr Liongson’s employment with the respondent was unlawfully terminated contrary to the provisions of s 659(2) of the Act.  The preliminary question sought to be answered was whether the respondent terminated the employment of the applicant within the meaning of s 659(2).  The order sought on that hearing was that “the proceeding be dismissed for want of jurisdiction”.  In his decision, the Federal Magistrate concluded on the evidence then before him that Mr Liongson was not dismissed – constructively or otherwise – by the respondent.  In consequence he concluded (at Reasons [26]):

There is no jurisdiction for this Court to determine the application by Mr Liongson and all other applications that are ancillary to or dependent on it.  All applications by Mr Liongson currently before the Court should be dismissed with costs.

2                          Whether or not the learned Federal Magistrate was correct in the view he took on the factual question of whether Mr Liongson had been dismissed by his employer, the Federal Magistrate clearly erred in the conclusion that followed from his finding.  The Court was seized of jurisdiction to determine the application made by Mr Liongson.  Section 663 of the Act conferred that jurisdiction.  There is no suggestion that the application was instituted otherwise than in good faith. 

3                          The application, on the Federal Magistrate’s finding on the preliminary question, inevitably had to be dismissed.  An essential element of Mr Liongson’s claim as determined on the hearing of the separate question was not made out.  The only proper order to be made by the Federal Magistrate in consequence was that, as no question could arise as to relief under s 665 of the Act, Mr Liongson’s application ought be dismissed.  That order would have been a final order and Mr Liongson would have been entitled to appeal as of right.  In form the orders made by the Federal Magistrate included an order that “all outstanding applications be dismissed”.  Though the path taken by the Federal Magistrate to arrive at this conclusion was clearly incorrect, the substantive result was not given his finding.  For this reason I am satisfied that the effect of the Federal Magistrate’s orders should properly be regarded as final with the consequence that Mr Liongson was entitled to appeal as of right.

4                          I will give him leave to file a Notice of Appeal. 

5                          In the circumstances, it is not for me to consider the motion for leave to adduce fresh evidence in the Full Court.  That will be a matter for the Court as constituted for the hearing of the appeal.  It is not for me to comment at this stage on the likelihood of success of the appeal.  I do consider it appropriate, though, to indicate that the failure of the appeal could result in a costs order against Mr Liongson under s 666 of the Workplace Relations Act. 

Associate:

Dated:         11 November 2009