FEDERAL COURT OF AUSTRALIA

Gao v Fair Work Ombudsman [2013] FCA 754

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to appeal of 15 July 2013 is dismissed.

2.    The applicant pay the respondent’s costs of that application.

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 made by the applicant (“Mr Gao”) for an extension of time to file a notice of appeal from orders made by Tracey J on 5 and 26 April 2013. The respondent (“the Fair Work Ombudsman”) opposes the application.

2    Mr Gao appeared without the benefit of legal representation.

3    This litigation has a complicated history. It is necessary to set out briefly the relevant background.

4    Mr Gao was employed by Citywide Service Solutions Pty Ltd (“Citywide Service Solutions”). He was dismissed summarily from that employment on 27 April 2012. Subsequently, he lodged a complaint with the Fair Work Ombudsman claiming that his former employer had underpaid him in respect of various entitlements. Mr Gao sought assistance from the Fair Work Ombudsman to recover the alleged underpayments. The Fair Work Ombudsman conducted an investigation and determined that Mr Gao’s claim of underpayments was not justified.

5    On 7 February 2013, Mr Gao filed an originating application naming Citywide Service Solutions, the Fair Work Ombudsman and the Commonwealth Ombudsman as respondents. The Fair Work Ombudsman was named as the second respondent. In relation to the Fair Work Ombudsman, Mr Gao sought judicial review of the decision by the Fair Work Ombudsman not to take action in relation to his claim of underpayments.

6     The only orders sought by Mr Gao against the Fair Work Ombudsman and also the Commonwealth Ombudsman, were orders that they apologise to him for failing to deal with his complaints.

7    On 20 March 2013, the Fair Work Ombudsman brought an application for the summary dismissal of Mr Gao’s proceeding against it. That application was listed to be heard on 5 April 2013 before Tracey J. Some time prior to 5 April 2013, Mr Gao discontinued his proceeding against the Commonwealth Ombudsman. On 5 April 2013, the matter was listed for a directions hearing together with the hearing of the application by the Fair Work Ombudsman for the summary dismissal of the claim made against it.

8     On 5 April 2013, Tracey J made orders that:

1.    The Commonwealth Ombudsman be removed as a respondent;

2.    There be judgment for the Fair Work Ombudsman; and

3.    Mr Gao pay the Fair Work Ombudsman’s costs of the proceeding, including reserved costs.

9    On 23 April 2013, Mr Gao discontinued his application against what was then the remaining respondent, Citywide Service Solutions. On 26 April 2013, in the course of other proceedings involving Mr Gao, Mr Gao asked Tracey J to provide his reasons for the orders made on 5 April 2013 in relation to the Fair Work Ombudsman.

10    On that day, Tracey J delivered his reasons for judgment which were published as Gao v Citywide Service Solutions Pty Ltd [2013] FCA 388 (“the reasons”). His Honour made orders that:

1.    The Commonwealth Ombudsman be removed as a respondent.

2.    There be judgment for the Fair Work Ombudsman.

3.    Mr Gao pay the Fair Work Ombudsman’s costs of the proceeding including reserved costs; and

4.    Mr Gao be granted an extension of time within which he may make application for leave to appeal from orders 2 and 3 to 17 May 2013.

11    His Honour’s reasons for making orders 2 and 3 were explained at [12] of the reasons as follows:

The reasons may be shortly stated. Mr Gao had intimated that he no longer wished to proceed against the Fair Work Ombudsman. The relief which he was seeking against the Fair Work Ombudsman (an apology) was relief the Court could not have granted to him even if he had been successful in establishing jurisdictional error on the part of the Ombudsman. As a result no purpose would have been served by the matter proceeding to trial. The costs order was made because I regarded the proceeding against the Fair Work Ombudsman to have been brought vexatiously.

12    On 9 May 2013, Mr Gao filed an application for leave to appeal the orders made by Tracey J. On 11 June 2013, Jessup J dismissed Mr Gao’s application for leave to appeal. Although I am told his Honour delivered ex tempore reasons for his judgment, those reasons are not yet available and were not put before me. Then, on 1 July 2013, Mr Gao filed this application for an extension of time to file a notice of appeal from the orders made by Tracey  J on 5 and 26 May 2013.

13     The applicable principles governing the grant of leave to file a notice of appeal out of time are set out in the judgment of Spender, O’Loughlin and Dowsett JJ in Parker v The Queen [2002] FCAFC 133 at [6]. There, the Full Court referred to the following considerations:

1.    applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

2.    action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

3.    any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

4.    however, the mere absence of prejudice is not enough to justify the grant of an extension; and

5.    the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

14    As the Full Court noted at [10] and [13], the purpose of the rule in relation to the grant of leave is to give the Court discretion to extend time in order to avoid injustice. This is intended to enable substantial justice to prevail over technical default. In Wilson v Alexander (2003) 135 FCR 273 Ryan, Heerey and Allsop JJ posited the test succinctly as requiring an applicant to:

1.    provide a satisfactory explanation for the delay in bringing the application; and

2.    demonstrate that there is a prospect of success on the substantive appeal.

15    I would not have refused Mr Gao’s application on the basis that no satisfactory explanation for the delay in bringing his application has been given. Mr Gao did seek leave to appeal shortly after the reasons for judgment of Tracey J were delivered. He now takes the view that no such leave is necessary. He explains the delay on the basis that the time for bringing an appeal was occupied by the pursuit of an unnecessary application.

16    The more fundamental difficulty for Mr Gao’s application concerns whether he can demonstrate that he has any prospect of success on the substantive appeal. On that issue the Fair Work Ombudsman contends that the proposed appeal is incompetent, because the judgment of Tracey J was an interlocutory judgment, and that Mr Gao cannot appeal against that judgment without leave. Leave to appeal, as I have said, has already been refused by orders made by Jessup J.

17    Section 24(1A) – (1D) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) provides as follows:

(1A)    An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

(1B) Subsection (1A) is subject to subsection (1C).

(1C)    Leave to appeal under subsection (1A) is not required for an appeal from a judgment referred to in subsection (1) that is an interlocutory judgment:

(a) affecting the liberty of an individual; or

(b) in proceedings relating to contempt of the Court or any other court.

(1D) The following are taken to be interlocutory judgments for the purposes of subsections (1A) and (1C):

(a) a judgment by consent;

(b) a decision granting or refusing summary judgment under section 31A;

(c) an order made by the Court under section 37AF, 37AS or 37AT;

    (d) an order made by the Federal Circuit Court under section 88F, 88U or 88V of the Federal Circuit Court of Australia Act 1999.

18    Mr Gao contends that his circumstances fall within the exception identified in s  24(1C)(a) of the Federal Court Act because the judgment of Tracey J affects the liberty of the individual. I reject that contention for the reasons given by Ryan J in Talacko v Talacko (2010) 183 FCR 297. At [43], Ryan J explained that the relevant exception is confined to orders which subject an individual to direct incarceration or other total deprivation of his or her physical liberty.

19    The Fair Work Ombudsman relied upon s 24(1D)(a) of the Federal Court Act to contend that the judgment of Tracey J was an interlocutory judgment, because it was a judgment by consent. The reasons for judgment of Tracey J make it clear that his Honour was of the view that Mr Gao had indicated that he no longer wished to proceed against the Fair Work Ombudsman. Mr Gao challenged that conclusion, and contended that he did not consent to withdraw his proceeding against the Fair Work Ombudsman.

20    I was taken to the transcript of the hearing held on 5 April 2013. Whilst it seems clear that Mr Gao opposed an order that he pay the costs of the Fair Work Ombudsman, the transcript includes statements made by Mr Gao sufficient to suggest that he was advising the Court of his intent to withdraw. However, I need not determine whether or not the orders made by Tracey J are to be characterised as consent orders, because, in my view, there is another basis upon which it may be concluded that the orders made are interlocutory.

21    The kind of interlocutory judgments for which leave is required by s 24(1A) of the Federal Court Act are not confined to the instances listed in s 24(1D).

22     As Acting Chief Justice McHugh and Gummow and Heydon JJ said in Re Luck (2003) 203 ALR 1 at [4]:

…the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.

At [9], their Honours went on to say:

Given the long established English rule, the decision in Tampion and our decisions in Pye, Hall, Carr and Bienstein, we see no valid reason for departing from the rule laid down in Tampion. An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.

23    In my view, the reasons given by Tracey J at [12] and reproduced at [11] above, make it clear that judgment was entered for the Fair Work Ombudsman because his Honour was of the view that the Court had no capacity to grant Mr Gao the relief which he sought against the Fair Work Ombudsman and because his Honour regarded the proceeding as having been brought vexatiously.

24    His Honour’s determination, in my view, is apt to be characterised as a dismissal of Mr Gao’s application on the basis that it was vexatious, that it was frivolous, and that it did not disclose a reasonable cause of action. I am of the view therefore that the order entering judgment for the Fair Work Ombudsman was an interlocutory order. The other orders relating to the Fair Work Ombudsman made by Tracey J were incidental to that order, and are also interlocutory for the reasons explained by Flick J in Anying Group Pty Ltd v Wang [2012] FCA 702 at [8].

25    It follows that to bring his appeal, Mr Gao requires leave. Leave has already been refused. Any appeal brought without leave will be incompetent. I am satisfied therefore that Mr Gao has no prospect of success on the substantive appeal. It seems to be that in this case that conclusion is determinative of Mr Gao’s application. I will make an order dismissing Mr Gao’s application.

26    Having heard the parties on the question of costs, there is no reason to depart from the usual costs order. I will order that Mr Gao pay the Fair Work Ombudsman’s costs of this application.

Associate:

Dated:    31 July 2013