FEDERAL COURT OF AUSTRALIA

Ghimire v Karriview Management Pty Ltd [2019] FCA 1108

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the applicants may bring an appeal against the orders made by the Industrial Magistrates Court of Western Australia on 17 November 2017 in each of M90 of 2017 and M92 of 2017 be extended until 14 days after the date of this order.

2.    Any appeal brought pursuant to the extension of time granted by these orders be confined to the matters stated in ground 1 of the draft notice of appeal annexed to the affidavits of each of the applicants dated 20 September 2018.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In December 2016 and January 2017, Mr Amrit Ghimire and his wife Ms Fulmaya Sharma worked for Karriview Management Pty Ltd (Karriview). A dispute arose as to the amount they were entitled to be paid. They each brought proceedings in the Industrial Magistrates Court of Western Australia. They said that they worked long hours and were not paid for those hours. The two claims were heard together on 15 November 2017. The court delivered its decision the following day. Both claims were upheld, but not to the full extent of the hours claimed. Judgment was given in favour of Mr Ghimire in the amount of $6,297.17 plus interest and for Ms Sharma in the amount of $2,824.82 plus interest. Orders were also made for the payment of superannuation contributions. The judgment amounts remain unpaid.

2    The appellants now bring applications for an extension of time in which to bring an appeal under s 565 of the Fair Work Act 2009 (Cth). The applications were commenced on 20 September 2018. They were sent by registered post to the registered address of Karriview. There was no appearance by Karriview and there was some delay as a result. It was not until May 2019 that the applicants sought to proceed on the basis of evidence that service had been effected at the registered office of Karriview.

3    The applications for extension of time are supported by affidavits briefly stating why the appeals were not brought within time. Reliance is also placed upon a transcript of the hearing before the magistrate. The evidence before me shows that the applicants are refugees. They have a limited command of English. They appeared on their own behalf before the magistrate and their evidence was given with the assistance of an interpreter. When the decision was made they did not agree with the decision of the magistrate and wanted to change the decision. They were confused about how to change the decision by the magistrate.

4    On the mistaken understanding that they could appeal to the Federal Circuit Court, the applicants brought proceedings in that court in April 2018. After being told by a registry officer that an appeal could be brought to the Full Bench of the Western Australian Industrial Relations Commission, in July 2018 the applicants submitted a claim in that jurisdiction.

5    In the meantime, in June 2018 the applicants were allocated pro bono legal assistance. They were advised that an appeal could be brought to this Court. In September 2018, an application was commenced with the assistance of pro bono counsel and solicitors (although the solicitors are not on the record).

6    Mr Ghimire has also deposed to the fact that in 2018 he suffered serious health issues including a heart attack.

7    The required extension of time is of the order of nine months.

8    There are a number of matters that the Court will usually take into account when considering whether to grant an extension of time. Speaking broadly, special circumstances need not be shown but the Court must be positively persuaded that it is proper for there to be an extension. As to particular matters:

(1)    There should be an adequate explanation for the delay. Generally, mere ignorance of the time limit is not a satisfactory explanation for the delay. A party wanting to appeal may be expected to investigate or inquire about the procedure and time limits for bringing an appeal.

(2)    The extent to which the applicant has taken steps to challenge or dispute the relevant decision in the intervening period will be considered.

(3)    If the outcome can be confidently predicted at the leave stage, it will seldom be in the interests of justice to grant leave where an appeal has little or no prospects of success because of the considerable additional cost and the impact on other litigants who have abided by time limits and are waiting for their appeals to be heard. However, the merits should be examined at a reasonably impressionistic level. The Court does not go into the merits in great detail and assesses the merits in a fairly rough and ready way.

(4)    The Court's view as to the strength of the claim may itself be a matter that is to be weighed with other matters so the fact that the claim might be viewed at the time of the application for an extension to be strong or weak is relevant.

(5)    Prejudice to the respondent, including prejudice that will be occasioned by having to defend the proceedings, is a material factor against the grant of an extension. The extent of that prejudice (which may vary depending upon the financial and other circumstances of the respondent) must be considered with some care.

(6)    Consequences for third parties should be brought to account, particularly more wide ranging effects that might flow if an appeal were allowed despite a period of delay.

(7)    These matters are not exhaustive and they are not rules to be rigidly applied. Also, it must be kept in mind that the Court has a general discretion to be exercised by reference to the particular circumstances of each case.

As to these matters see: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344; Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [7]-[9]; Parker v The Queen [2002] FCAFC 133 at [6]; Hamden v Secretary, Department of Human Services [2013] FCA 3 at [40]; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[66] (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]); MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]; and Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20].

9    As to the merits of the proposed appeal, a draft notice of appeal has been provided and submissions were advanced explaining the grounds that the applicants seek to advance. The first ground is to the effect that there was error in not accepting the evidence of the applicants as to the hours that they worked and in finding that they worked less hours. The error is said to involve, amongst other things, a failure to apply the onus that was on Karriview to disprove breach of the applicable award. It is contended that the onus could not have been discharged because no records or payslips were produced and the only person who gave evidence for Karriview was not present at the place of employment most of the time and could not give evidence of the hours worked. On the face of the material this ground is reasonably arguable.

10    The second ground is to the effect that magistrate erred in failing to consider whether to order penalties. Before the Court was the application by Mr Ghimire in the Industrial Magistrates Court (a copy of the application was provided after the hearing). The application sought payment of $20,000 plus applicable superannuation and interest. I infer that the same applied to Ms Sharma's application (although a copy was not before the Court). The transcript of the hearing indicated that the applications were heard in the small claims jurisdiction of the Industrial Magistrates Court.

11    An eligible state court can order pecuniary penalties under the Fair Work Act: s 546. However, proceedings may be dealt with as small claims proceedings under s 548 if an application is made for an order other than a pecuniary penalty order. So, if the applications did proceed as small claim proceedings it appears that pecuniary penalties could not be sought. There is no reference in the transcript of the proceedings before the magistrate to the applicants seeking pecuniary penalties. As I have noted, on the evidence before me there was no such claim in the applications. It was not suggested that leave might be granted to raise the appeal ground even though penalties were not sought before the magistrate. However, given the further issues that would arise when it came to considering penalties, leave would be refused. Therefore, this is not a case where constructive error might be demonstrated as to penalties on the basis of a point raised for the first time on appeal. In those circumstances it has not been shown that there is any merit in the claim that the magistrate erred in failing to consider whether to order pecuniary penalties.

12    Karriview has not acted on the judgments of the Industrial Magistrates Court. It has not paid anything. So, this is not a case where the respondent has proceeded on the basis that the decision has brought the matter to an end. This is an important matter that weighs in favour of the grant of the extension of time.

13    Also, Karriview has not filed a notice of intention to act. There was no appearance for Karriview at the hearing of the application for an extension of time. A letter dated 7 July 2019 signed by Mr Lindsay Quann '[f]or and on behalf of Karriview Management Pty Ltd' was received by the solicitors who have provided pro bono assistance to the applicants. Mr Quann appears to be the person who gave evidence before the magistrate at the hearing of the original applications. The letter disavowed any knowledge of the proceedings in this Court prior to receipt of a letter dated 21 May 2019 enclosing the orders of this Court listing the application for an extension of time for hearing. The letter concluded:

We request that given we are unrepresented at this time, in accordance with your obligations as an officer of the Court, that any ex parte hearing that you have in our absence (particularly with regard to the scheduled hearing of 16 July 2019), that you provide the Court with a copy of this letter in order that the Court is fully aware of our position with respect to this appeal.

14    When the letter was drawn to the attention of the Court, a communication was sent by my Associate to an email address for Karriview provided by pro bono counsel for the applicants. It stated:

I refer to the above matters and to your letter to Mr Fletcher dated 7 July 2019.

Counsel for the applicants in these matters has brought the letter to the attention of the Court.

Please be advised that the letter is not a proper basis on which to obtain an adjournment. The hearing of the matters on 16 July 2019 at 10.15am may proceed in the absence of any appearance for the respondent.

If the respondent wishes to oppose the orders being sought, contact should be made with the Perth Registry of the Federal Court of Australia at Perth.Registry@fedcourt.gov.au or on (08) 9268 7118, regarding filing the appropriate documents.

Please confirm receipt of this email.

15    No response was received to the email.

16    In the circumstances, Karriview has had notice of the application and the hearing date for some time and there is no explanation for the failure to attend.

17    There is adequate explanation for the delay by the applicants in seeking to bring an appeal in this Court, especially given the personal circumstances of the applicants. Importantly, there is evidence that the applicants have sought for some time to pursue an appeal and have been hampered in doing so by their lack of understanding of the process. They do not say simply that they did not know about the time limit. They have not sat on their rights. They have tried to pursue them.

18    Further, claims to payment for employment are important matters for the applicants. The appeal raises points of a relatively confined nature. The proposed appeal concerns claims of a kind that a business owner might be expected to face. On the material before me there is nothing to suggest that the appeal would place an undue burden on Karriview.

19    There do not appear to be any consequences that would flow to third parties who may have acted on the basis that there was to be no appeal.

20    In all the circumstances, I am satisfied that there should be orders for an extension of time on both applications but the extension of time should be confined to an appeal seeking to raise the matters stated in ground 1 of each of the proposed notices of appeal.

Associate:

Dated:    17 July 2019