FEDERAL COURT OF AUSTRALIA

Reihana v Mastercare Highrise Cleaning Services Pty Ltd [2014] FCA 964

THE COURT ORDERS THAT:

1.    The application for extension of time to file a notice of appeal is dismissed.

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

REASONS FOR JUDGMENT

1    The applicant seeks an extension of time to appeal from a judgment of a single judge of this Court.

2    The judgment was pronounced on 8 April 2014. The applicant filed his application on 7 July 2014, some later 90 days. Rule 36.03 of the Federal Court Rules 2011 (Cth) allows a party 21 days after the date on which the judgment was pronounced to file a notice of appeal. Consequently, the applicant’s application is over two months late.

3    The applicant’s employment with the respondent was terminated on 23 December 2012. He applied on 13 February 2013 to the Fair Work Commission pursuant to s 394 of the Fair Work Act 2009 (Cth) for remedies in respect of what the applicant alleged was unfair dismissal. That application was made outside the 21 day time limit. Section 394(3) of the Fair Work Act allows the Fair Work Commission (“the FWC”) to extend time if satisfied that there are exceptional circumstances. The FWC was not satisfied that there were exceptional circumstances. In particular, it was not satisfied that the applicant’s explanation for his delay, namely, that he had first applied to the Queensland Industrial Relations Commission (“the QIRC”) before later realising his mistake, was satisfactory. The FWC refused to extend the time for the filing of the application.

4    The applicant then sought to appeal against that decision to the Full Bench of the FWC, but the Full Bench refused to give him permission to appeal. It also refused to allow him to adduce new evidence.

5    The applicant then applied to the Federal Court of Australia pursuant to s 39B of the Judiciary Act 1903 (Cth) for certiorari and mandamus. It is unclear from the application whether he sought relief against the Full Bench decision only or whether he also sought relief in respect of the first instance decision. The grounds of the applicant’s application to the Federal Court included that:

(a)    the Full Bench had denied him natural justice by failing to give him an adequate hearing;

(b)    the Full Bench had denied him natural justice by failing to allow him to adduce new evidence;

(c)    the member at first instance had failed to take into account his explanation that he had been misled by the QIRC website into initially making an application to that Commission;

(d)    the Full Bench erred in concluding that the public interest did not require that permission to appeal be given and concluding that the decision at first instance did not involve any significant error of fact;

(e)    the Full Bench erred in failing to find that his actual date of dismissal was four weeks from 23 December 2013, taking into account that he had been paid four weeks’ wages in lieu of notice.

6    The primary judge rejected each of these grounds.

7    The applicant now seeks an extension of time to appeal against the judgment of the primary judge pursuant to r 36.05 of the Federal Court Rules. The matters relevant to the exercise of the Court’s discretion to grant an extension of time include:

(a)    whether the applicant has shown that there is an acceptable explanation for the delay;

(b)    whether the applicant took any other steps to assert his or her rights;

(c)    the length of the delay;

(d)    any prejudice to the respondent as the result of the delay; and

(e)    the merits of the proposed appeal.

[Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Jess v Scott (1986) 12 FCR 187 at 195-196]

8    The applicant’s explanation for his failure to file a notice of appeal within the time limit is, essentially, that he was too busy with other duties and responsibilities. He states that on 8 April 2014, the day on which the judgment was given, he left for New Zealand to carry out his supervisory native land administration duties. He had already been delayed by about three weeks in travelling to New Zealand because of the hearing on 2 April 2014. He then travelled to a remote island until about 15 May 2014, where he had no means of communication with the outside world. I accept that his responsibilities are serious and important ones.

9    The appellant then had further duties to perform in Invercargill and then he drove to Christchurch, where he spent some time with his father. He returned to Australia on 24 May 2014 in time for a hearing in the Supreme Court of Queensland on 30 May 2014. He then spent some time helping a friend with his friend’s litigation. The applicant accepts that he was aware of the time limit for the filing of the notice of appeal but states that all of his duties and responsibilities prevented him from filing his notice of appeal earlier.

10    The applicant chose to give preference to his other duties and responsibilities over the exercise of his right to appeal. It was a matter for the applicant as to how he chose to allocate his time. However, the applicant’s choice not to file his appeal within the time limit affects the question of whether he should be permitted an extension of time.

11    The applicant explains that at the initial directions hearing before the primary judge in October 2013 he had sought a hearing date in June 2014 so that the hearing could take place after the completion of his supervisory duties. He says that he had in mind that if he was unsuccessful before the primary judge that he would appeal and that he would need some time to organise himself to do so. He says that after some negotiation, the primary judge allocated a hearing date of 2 April 2014, which represented a compromise between an earlier date sought by the respondent and the later date sought by him. The applicant submits that the primary judge erred in failing to allow him the later date that he had requested for the hearing. However, he did not seek leave to appeal against the orders setting down the matter for a hearing. It is now too late to challenge that order. In any event, it is difficult to see how any decision to set down the hearing date on 2 April 2014 could have created any injustice. The applicant could have delayed his departure to New Zealand in order to file his notice of appeal. He had already been delayed for some weeks and it is difficult to see how a further few days would have made a difference. Even after the applicant returned from the remote island on 15 May 2014 and then went to Invercargill and Christchurch, he did nothing to advance his appeal. When he returned to Australia, he again did nothing to advance his appeal, preferring to attend to other litigation of his, and to his friend’s litigation. The applicant made a choice as to whether or not to file his notice of appeal within the time limit and must take responsibility for the consequences of that choice. He has not provided an acceptable explanation for the delay.

12    There is no evidence that the applicant took any other steps to assert his rights prior to filing his application for an extension of time to appeal. The length of the delay is significant. The application for an extension of time was not filed for over two months after the time limit expired.

13    The respondent did not appear at the hearing. The applicant states that he did serve the respondent with his application and the supporting affidavits. There is no evidence of any prejudice to the respondent as a result of the delay. However, the absence of prejudice is not enough of itself to justify an extension of time.

14    If I were minded to make an order adverse to the interests of the respondent, I would have first required formal proof of service. However, I have reached a firm conclusion that I should not make any such order.

15    An appeal to a full court from a judgment of a single judge is by way of rehearing. The appellate court could only exercise its powers to set aside the primary judgment only if satisfied that there was error on the part of the primary judge. Accordingly, in his proposed appeal, it would be necessary for the applicant to demonstrate legal or factual error on the part of the primary judge.

16    The applicant submitted that the primary judge erred in accepting that the Full Bench had read the applicant’s submissions when that had not occurred and in failing to accept that he had been denied a fair hearing by the Full Bench. Her Honour carefully considered the applicant’s submissions. Her Honour held that impatient or abrupt comments do not of themselves constitute a denial of natural justice and held that the applicant had been provided with ample opportunity to be heard. Her Honour accepted the truth of the Full Bench’s repeated statements during the hearing that it had read the submissions. There was no reason to reject those statements as untrue. I cannot see that the applicant has an arguable case of error in respect of the primary judge’s reasons as to the natural justice grounds.

17    The applicant also argued that her Honour erred in failing to hold that the Full Bench ought to have allowed him to adduce new evidence. Her Honour considered that the Full Bench appreciated the nature and importance of the new material to the applicant’s case and considered that the Full Bench’s decision not to allow the new evidence to be adduced was in accordance with the law and the preponderance of authority on the issue. Again, I cannot see that the applicant has an arguable case of error in respect of this aspect of her Honour’s decision.

18    I consider that the applicant’s prospects of success in any appeal would be poor. Bearing in mind the absence of an acceptable explanation for the applicant’s delay, the length of the delay and his poor prospects of success, I consider that the applicant’s application for an extension of time should not be granted. Accordingly, I dismiss the application.

Associate:

Dated:    5 September 2014