FEDERAL COURT OF AUSTRALIA

Sawtell v P. J. Clarke Investments (Qld) Pty Ltd [2019] FCA 385

Appeal from:

Sawtell v P.J. Clarke Investments (Qld) Pty Ltd [2018] FCCA 2204

File number:

NSD 1424 of 2018

Judge:

FLICK J

Date of judgment:

21 March 2019

Catchwords:

PRACTICE AND PROCEDURE – notice of appeal – failure to state grounds of appeal – decision not attendant with arguable appellable error appeal dismissed

PRACTICE AND PROCEDURE respondent corporation not represented by a lawyer – compliance with rule dispensed with – compliance would be an unnecessary formality

Legislation:

Fair Work Act 2009 (Cth) s 45

Federal Court of Australia Act 1976 (Cth) s 24

Federal Court Rules 2011 (Cth) rr 1.34, 4.01, 36.01(2), 36.75

Federal Court Rules 1979 (Cth) O 52, 13(2)

Cases cited:

Commonwealth of Australia v Evans [2004] FCA 654, 81 ALD 402

Doggett v Commonwealth Bank of Australia [2018] FCA 1253

Giddings v Australian Information Commissioner [2017] FCAFC 225

Sawtell v P.J. Clarke Investments (Qld) Pty Ltd [2018] FCCA 2204

Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121, (2012) 207 FCR 390

SZTOG v Minister for Immigration and Border Protection [2018] FCA 112

Zegarac v Dellios [2007] FCAFC 58

Date of hearing:

14 March 2019

Registry:

New South Wales

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

20

Counsel for the Appellant:

The Appellant did not appear

Counsel for the Respondent:

Mr P J Clarke appeared for the Respondent

ORDERS

NSD 1424 of 2018

BETWEEN:

CAROL SAWTELL

Appellant

AND:

P. J. CLARKE INVESTMENTS (QLD) PTY LTD

Respondent

JUDGE:

FLICK J

DATE OF ORDER:

21 MARCH 2019

THE COURT ORDERS THAT:

1.    Compliance by the Respondent with r 4.01(2) of the Federal Court Rules 2011 (Cth) is dispensed with pursuant to r 1.34.

2.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The owner/manager of the Ballina Motel, Mr Peter Clarke, provided to Ms Carol Sawtell a Letter of Engagement dated 6 March 2017. That Letter offered casual employment to Ms Sawtell under the Hospitality Industry (General) Award 2010.

2    On 25 October 2017, Ms Sawtell filed an Application in the Federal Circuit Court of Australia commencing an action in which she sought to recover from P.J. Clarke Investments (Qld) Pty Ltd the payment of monies. That Application claimed that Ms Sawtell commenced employment on 2 March 2017 and that her employment was terminated on 16 June 2017 and, further, claimed that the Respondent “paid below the award rates” during the period of employment. That Application quantified the “gross amount outstanding [as] $31,689.66. On 6 July 2018, Ms Sawtell filed an amended Application. This Application abandoned each of the claims made in the original Application. Ms Sawtell instead filed a Form 5 – Small claim under the Fair Work Act 2009. This document alleged contraventions of s 45 of the Fair Work Act 2009 (Cth) with the “remedy sought being $20,000.

3    The proceeding was dismissed by a Judge of that Court on 17 July 2018: Sawtell v P.J. Clarke Investments (Qld) Pty Ltd [2018] FCCA 2204. In an ex tempore judgment, the primary Judge referred to “problems” experienced in respect to Ms Sawtell’s evidence. That Judge continued (in part) as follows:

[6]    But perhaps the greatest concern the Court has is the inconsistency between the evidence of Ms Sawtell and the evidence of the two Mr Clarkes, and perhaps even more acutely, the inconsistency that exists between the Applicant’s evidence and that in the business records of the Respondent. The business records, in particular, seem to be fairly typical for a small business of this type. They appear to follow quite common procedures, such as, for example, basic documentation evidencing the creation of an employment relationship. In this case, the letter of engagement.

[7]    The business records as to the hours worked and the payments made appear, once again, reasonable for a small business of this nature. It is possible, the Court acknowledges, that payslips may not have been provided to the Applicant, strictly in accordance with the Act. Perhaps, in reality, they were made available to her in the sense that they were in a known place. But the overall impression created by these records is that the Applicant brings a claim in respect of working hours that vastly exceed the reality.

[8]    The Applicant’s claim was really characterised on the basis that she was a live-in-manager of the Motel and that she oversaw a Motel that had a moderate level of activity in terms of people coming and going.

[9]    The evidence of the Respondents was starkly different. Moreover, the evidence of the business records is starkly different. It is hard to reconcile the two different versions of what took place. The business records ultimately tip matters in favour of the Respondents. For the Court to have ignored the business records would involve accepting the implied, if not express, contention on behalf of the Applicant that these records were, in effect, fraudulently created for the purposes of these proceedings. The Court is not prepared to make that finding.

4    On 7 August 2018, Ms Sawtell filed in this Court a Notice of Appeal from the Federal Circuit Court (“Notice of Appeal”). The Grounds of Appeal were there set forth as follows:

The “Attached notes” refer (inter alia) to the period of time Ms Sawtell maintains that she worked at the Motel; a statement that she is “clear of drugs; and a reference to bank statements.

5    On 5 September 2018, the Respondent filed a Notice of Objection to Competency. That Notice maintains that Ms Sawtell:

    has not pleaded or provided particulars of any alleged errors of law made” by the primary Judge;

    has not pleaded or provided particulars of any alleged error of findings of fact” made by the primary Judge; and

    is attempting to introduce evidence into the matter which is an abuse of processes of the Court”.

That Notice also contends that the “Application is vexatious”. The Notice of Objection to Competency was prepared by and filed by Mr P. J. Clarke and is stated to be filed on behalf of P. J. Clarke Investments (Qld) Pty Ltd. Mr P.J. A copy of the Notice of Objection to Competency dated 5 September 2018 was also filed, again, later in September 2018 with the same Grounds of Objection. A third Notice of Objection to Competency was filed on 11 March 2019. This Notice is also dated 5 September 2018, however it sets out an additional two grounds of objection, namely that (without alteration):

    The Applicant has attempted to re-litigate this matter in the New South Wales Local Court Lismore. Was dismissed on the 29/11/2018…”; and

    The Applicant failed to comply with Direction to supply the Federal Circuit Court Sydney per orders dated 26/09/2018”.

6    The proceeding was referred by the Chief Justice to the Court as presently constituted to consider the Objection to Competency and the manner in which it should be resolved.

7    The matter was listed for interlocutory hearing on 6 March 2019. On that occasion Ms Sawtell did not appear and was not able to be contacted by telephone. Mr Clarke sought to appear for the Respondent. The matter was stood over for hearing to 9.30 on 14 March 2019. The Registry advised Ms Sawtell on 7 March 2018 that her proceeding was stood over to this date and further advised that on that occasion the Court may dismiss the application for reason of non-appearance pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) (the “Federal Court Rules”) .

8    On 14 March 2019, Ms Sawtell again failed to appear and could not be contacted by way of telephone. Although one option open to the Court was to dismiss her appeal by reason of her non-attendance on both 6 and 14 March 2019 pursuant to r 36.75, the course which has been pursued is to proceed to resolve the competency of her appeal and also the merits of any appeal in her absence.

9    Rule 4.01(2) of the Federal Court Rules provides that a “corporation must not proceed in the Court other than by a lawyer. To require the Respondent Corporation to retain legal representation, given the amount of money at stake and the failure on the part of Ms Sawtell to pursue her appeal, would be an unwarranted insistence upon formality. Compliance with r 4.01(2) is dispensed with pursuant to r 1.34.

10     It is concluded that the appeal should be dismissed.

The form of the Notice of Appeal

11    The Notice of Appeal as filed fails to comply with r 36.01(2) of the Federal Court Rules. That sub-rule provides as follows:

The notice of appeal must state:

(a)    whether the whole judgment or all of the orders, or only part of the judgment or some of the orders, are appealed from; and

(b)    if only part of the judgment, or some of the orders, is appealed fromthe part of the judgment or the particular orders appealed from; and

  (c)    briefly but specifically, the grounds relied on in support of the appeal; and

(d)    the judgment or orders the appellant wants instead of the judgment or orders appealed from.

The Notice of Appeal fails to identify whether it is the whole or only a part of the judgment from which the appeal is brought. But nothing much turns on that. It may safely be assumed that an unrepresented Appellant seeks to appeal from the whole of the judgment and orders made on 17 July 2018.

12    It is the failure to identify any of the “grounds– let alone a failure to identify any “grounds” with any degree of specificity as required by r 36.01(2)(c) which assumes present relevance. The manner in which Ms Sawtell seeks to contend that the primary Judge erred is not apparent – nor discernible from the materials available to the Court. The objective of the r 36.01(2)(c) is “to direct the attention of the Court and the Respondent to the appeal to alleged appellable errors said to have been committed by the primary Judge and to focus upon the issues sought to be pursued on appeal: Giddings v Australian Information Commissioner [2017] FCAFC 225 at [9] per Collier, Flick and Charlesworth JJ. Although Ms Sawtell would presumably seek to contend that the primary Judge erred in the manner in which he resolved the evidence, such disagreement of itself does not establish appellable error: Commonwealth of Australia v Evans [2004] FCA 654, 81 ALD 402. When entertaining an appeal pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), Branson J there observed:

[35]    The remarks that I made concerning the way in which a notice of appeal should be drawn in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 55 IPR 354, which were endorsed by Spender and Miles JJ in Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 at [10], are applicable here. In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd at [4]-[5] I said:

‘A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the Court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge’s process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.

A useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant’s submissions to the Full Court is almost certainly a notice of appeal which fails to comply with the requirements of O 52 r 13(2)(b). Neither the notice of appeal nor the document containing the revised grounds of appeal was, or could have been, so utilised in this case.

13    But a failure to comply with r 36.01(2)(c) requiring a notice of appeal to state “briefly but specifically, the grounds relied on in support of the appeal”, does not necessarily render an appeal incompetent. In Zegarac v Dellios [2007] FCAFC 58 (“Zegarac”), North J had observed in respect to the former rule, namely O 52 r 13(2) of the now-repealed Federal Court Rules 1979 (Cth):

[7]    In my view, it does not follow that a failure to comply with O 52 r 13(2) renders an appeal incompetent. If the notice is incomprehensible or entirely unrelated to the issues dealt with in the judgment, an appeal may be incompetent. … However, in this case the notice of appeal, while prolix and not in compliance with O 52 r 13(2), is not incomprehensible...

Justice Jessup observed:

[11]    I also agree, subject only to a brief comment which I wish to make about O 52 r 18 of the Federal Court Rules. In my view, an appeal is incompetent if it is brought in circumstances which “the law simply does not allow to happen: McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10 at [6].

[12]    There may be cases in which the sheer incomprehensibility of a notice of appeal justifies the conclusion that the appeal is incompetent within the terms of r 18, but I would regard such cases as being those of the class of which Lindsey v Philip Morris Ltd [2004] FCAFC 40 is an obvious example. I think that the court ought to be particularly cautious before it uses r 18 to deal with a Notice of Appeal which is comprehensible, albeit prolix, and unlikely to be regarded as complying with O 52 r 13(2)(b).

Justice Weinberg agreed with North J.

14    In reliance upon Zegarac, Griffiths J in Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121, (2012) 207 FCR 390 at 396 to 397 observed:

[29]    Although Zegarac was directed to the relevant provisions under the previous Rules, I consider that the terms of the 2011 Rules do not require a different approach to be taken on this issue.

[30]    Such an approach recognises that, while mere non-compliance with r 36.01 is insufficient to render an appeal incompetent, the position may be different if the notice of appeal is also incomprehensible, as is illustrated by the examples of incomprehensibility cited by North J in the passage from Zegarac set out in [25] above.

[31]    In determining whether one or more grounds of appeal are incomprehensible, I consider that it is appropriate to approach the task as one of determining whether the notice of appeal, as a matter of substance, specifies appellable errors. If it does not, as Flick J observed in SZLQW [[2008] FCA 1279] at [9], it may simply be a question as to whether an order should be made dispensing with any requirement to comply with the Rules, as is permitted under r 1.34 of the 2011 Rules. As his Honour also observed, although compliance with the Rules should not be lightly put aside, compliance should not become an “instrument of oppression”. And, while it is appropriate to make some allowance for the fact that a party is a litigant in person, that fact alone cannot provide a basis for the Court exercising a jurisdiction which it does not have.

See also: SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [27] per Flick J; Doggett v Commonwealth Bank of Australia [2018] FCA 1253 at [5] per Davies J.

15    On the facts of the present case, the identification by Ms Sawtell of her Grounds of Appeal in both the Notice of Appeal itself and the “Attached Notes” are most probably so incomprehensible as to render her appeal “incompetent.

16    But what dooms the present appeal to failure is the absence of any self-evident – or arguable – error on the part of the primary Judge. The findings of fact and the reasoning simply expose a primary Judge preferring the evidence of one party to the other. Rarely are such findings disturbed. Even more rarely are such findings disturbed when the findings are consistent with documentary evidence and corroborative of the account given by the party whose evidence has been accepted.

17    Had there been any merit in Ms Sawtell’s appeal, it would have been open for the Court to dispense with compliance with r 36.01(2)(c) of the Federal Court Rules and to proceed to resolve the appeal by reference to such arguments as emerged from the materials available to the Court. But no appellable error emerges from either the reasons or findings of the primary Judge or from the materials available to this Court.

CONCLUSIONS

18    The appeal is without merit.

19    There is no arguable appellable error committed by the primary Judge. Even though the existing Notice of Appeal fails to comply with r 36.01(2)(c) of the Federal Court Rules, it is the absence of any prospect of that deficiency being remedied which leads to the appeal being dismissed.

20    There is no evidence that the Respondent Corporation has incurred any legal costs that could be recovered. At all times it was Mr P. J. Clarke who had sought to represent the Respondent. There will thus be no order as to costs.

THE ORDERS OF THE COURT ARE:

1.    Compliance by the Respondent with r 4.01(2) of the Federal Court Rules 2011 (Cth) is dispensed with pursuant to r 1.34.

2.    The appeal is dismissed.    

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated:    21 March 2019