FEDERAL COURT OF AUSTRALIA

Quincolli Pty Ltd v Fair Work Ombudsman [2012] FCA 373

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal filed 30 January 2012 be dismissed.

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

REASONS FOR JUDGMENT

1        This is an application for an extension of time to seek leave to appeal, and I will also deal with the application for leave to appeal, although the applicants’ position, as I understand it, is that leave is not required. The relevant decision is a decision of the Federal Magistrates Court of Australia (the FMC): Fair Work Ombudsman v Quincolli Pty Ltd & Anor [2011] FMCA 139, handed down on 28 November 2011. The applicants require an extension of time to seek leave to appeal against this decision because they did not file the application for leave within the required time period, being 14 days after the date on which the judgment was pronounced (Federal Court Rules 2011, r 35.12).

2        The applicants’ primary concern in relation to the leave application is that, although the applicants appreciate that the matter in the FMC is incomplete in that the FMC has made declarations in relation to contraventions of legislation, including, relevantly, the Fair Work Act 2009 (Cth) (the Fair Work Act) and the Workplace Relations Act 1996 (Cth), the FMC has not determined what penalty, if any, should be imposed consequential upon those contraventions. The applicants’ position is that their business should not have to suffer the adverse publicity and losses which would accompany a hearing in relation to the determination of any penalty in circumstances where, in their view, the decision on liability as set out in the reasons for judgment of the FMC is incorrect and should be set aside on appeal.

3        The difficulty which such an application presents to the court is reflected in the decision of Rares J in Australian Postal Corporation v Stephens (No 2) (2011) 207 IR 454; [2011] FCA 992 (Stephens), which the respondent helpfully drew to my attention. In that matter, Rares J was not confronted by an application for an extension of time, but dealt with an application for leave to appeal. The basic facts are comparable to those in the present case in that the applicant required leave to appeal because the FMC had determined liability and found that the applicant had contravened provisions of the Fair Work Act, but had not yet determined penalty.

4        Rares J referred to the principles (at [7]) that “an applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave…[and] must also show that substantial injustice will result from a refusal of leave to appeal”. At [16], his Honour concluded as follows:

In all of the circumstances I am not satisfied that substantial injustice would result from the refusal of grant of leave. Indeed, I consider that the balance of the justice of the case lies heavily in favour of refusing leave to appeal. Interlocutory appeals of this nature should be discouraged where there can be expeditious and prompt determination of penalty at a short hearing so that this Court will be able to appreciate, on the appeal, the whole of the factual circumstances, and all of the findings made by the trial judge both on the merits and on penalty. This is preferable to a bifurcated, trilogy of proceedings, which would result were leave granted. In these circumstances, I am of opinion that I should order that the application for leave to appeal be dismissed.

5        The applicants’ position is that there will be no injustice to the respondent should it be permitted to appeal against the existing decision, but that there will be injustice to the applicant if it is forced to a hearing on penalty and only then ultimately permitted to appeal. I am not unsympathetic to the applicants’ concerns about being involved in litigation, but the interests of justice do not concern only the applicants’ interests. While the applicants have judged that their interests are best served by seeking leave at this stage, it seems to me that it is clear that the interests of justice, as Rares J found in Stephens, weigh heavily against the applicants in relation to this matter.

6        In short, there is no point granting the applicants an extension of time if the applicants cannot also obtain a grant of leave to appeal. Consistent with the respondent’s submissions and the authorities to which I have been taken, the decision of the FMC is an interlocutory decision in that it does not finally determine all of the rights of the parties. Accordingly, in order to grant leave to appeal, I need to be satisfied that substantial injustice will result from a refusal of leave to appeal. Viewed objectively, however, I consider that substantial injustice cannot result from a refusal of leave to appeal and that the interests of justice would be subverted by the grant of leave to appeal.

7        The reason for this is precisely as identified by Rares J at [16] of Stephens and, as I explained to the applicant at the commencement of this hearing, if the applicant succeeds in obtaining leave in terms of the extension of time and leave to appeal, the appeal at this stage would proceed on the basis of this matter being incomplete. This Court would determine whether any of the applicants’ grounds of appeal should be upheld in respect of the existing position. If the applicant succeeds, that is one thing; but if the applicant fails, the matter will have to proceed to a hearing on penalty, and the applicants may well be dissatisfied with that result as well. This would lead to yet another appeal in relation to the penalty decision. It is an inappropriate use of the court’s resources to deal with legal matters in what Rares J described as a bifurcated trilogy of proceedings rather than this court being able to appreciate, on the appeal, the whole of the factual circumstances including the findings made by the trial judge both on merits and on penalty. It would also be an inappropriate demand on the respondent’s resources. The respondent is also a party to these proceedings and should not be forced to be involved in proceedings in a sequential form with interlocutory appeals.

8        In other words, I agree with Rares J’s view that interlocutory appeals of this nature should be discouraged, because in this matter there can be an expeditious and prompt determination of the penalty, and if the applicants are dissatisfied with the result as a whole, then they will have a right to appeal in respect of the whole of the decision. The applicants’ interests, which no doubt are genuine and important to them, in not being subjected to adverse publicity in relation to a penalty hearing cannot outweigh the other interests to which I have referred. For these reasons, it follows that I am of the view that the application for leave to appeal cannot succeed.

9        Consequently, there is no purpose to granting the application for the extension of time. If it be necessary to say so, the application for the extension of time is also weak on its own facts for precisely the reasons set out in the respondent’s written submissions. The applicants were legally represented at the time the judgment was delivered and, possibly more importantly in the circumstances of this case, at the directions hearing on 16 December 2011, when the FMC set the timetable for the hearing on penalty. In those circumstances, there is not an adequate explanation for the fact that the leave application was not filed within time. Be that as it may, however, it seems to me that the real reason the application for an extension of time should be refused in this case is because it would have no utility, given the view that I have that leave to appeal should also be refused.

Associate:

Dated:    12 April 2012