FEDERAL COURT OF AUSTRALIA

Southern Migrant and Refugee Centre Inc v Shum [2020] FCA 832

ORDERS

THE COURT ORDERS THAT:

1.    To the extent that they require it (if any):

(a)    the deadline by which the applicants were to file an application for leave to appeal from the judgment of the Federal Circuit of Australia in Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214 (hereafter, the “Primary Judgment”) be extended to 28 February 2020; and

(b)    the applicants be granted leave to appeal from the Primary Judgment.

2.    The deadline by which the applicants are to file a notice of appeal from the Primary Judgment (whether pursuant to the leave granted above or otherwise) be extended until 14 July 2020.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicants move the court for an extension of time within which to seek leave to appeal—or, alternatively, to appeal—from a judgment of the Federal Circuit Court of Australia (hereafter, the “FCCA”). Insofar as leave to appeal is required, that is sought also.

2    The judgment in question—Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214 (hereafter, the “Primary Judgment”; Judge Riley)—concerned a suit brought against the applicants (and others) under pt 3-1 of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”). The respondent, Ms Shum, is a former employee of the first applicant, Southern Migrant and Refugee Centre Inc (hereafter, the “SMRC”). The other applicants are current or former employees or officers of the SMRC. By her action in the FCCA, Ms Shum alleged (amongst other things) that her employment with the SMRC had been terminated in contravention of ss 340(1) and 352 of the FW Act. The FCCA accepted as much.

3    As is customary, the trial before the FCCA was split into two phases. The first concerned the then-respondents’ liability for the contraventions that Ms Shum alleged against them. That is the subject of the Primary Judgment: the FCCA accepted that the then-respondents (or some of them) had contravened the FW Act in some (though not all) of the ways that Ms Shum had alleged. The second phase of that suit is yet to be heard. It will deal with the relief that ought to be granted in light of the court’s findings on liability. It has been adjourned pending resolution of the proceeding that is now before this court.

4    By the Primary Judgment, the FCCA made orders apparently in the nature of declarations, by which it recorded its findings as to the then-respondents’ liability for the contraventions (or some of the contraventions) that Ms Shum had alleged against them. Under the heading “declarations”, the court recorded in the Primary Judgment as follows:

1.     Southern Migrant Resource Centre (“SMRC”) contravened s.340 of the Fair Work Act 2009 (“the Act”) by taking adverse action against Lai Shum by dismissing her from her employment for prohibited reasons including that she had exercised or proposed to exercise workplace rights.

2.     Pursuant to s.550(2)(a), (c) and (d) of the Act, Brian Oates and Travis Heeney were involved in SMRC’s contravention of s.340 of the Act.

3.     SMRC contravened s.352 of the Act by dismissing Lai Shum partly because she was temporarily absent from work due to illness or injury.

4.     Pursuant to s.550(2)(a), (b) and (c) of the Act, Travis Heeney was involved in SMRC’s contravention of s.352 of the Act.

5    The Primary Judgment was pronounced on Wednesday, 5 February 2020. Under the Federal Court Rules 2011 (Cth) (hereafter, the “FCA Rules”), the applicants had until 4 March 2020 to lodge an appeal (FCA Rules, r 36.03) or 19 February to lodge an application for leave to appeal, if it were required (FCA Rules, r 35.13). For reasons that will shortly be addressed, there is much confusion about whether or not they require this court’s leave in order to appeal from the Primary Judgment.

6    The present application was not filed until 28 February 2020. No notice of appeal has been filed as yet. Regardless of whether or not they require leave to appeal from the Primary Judgment, the applicants first require an extension of time. For the reasons that follow, I am satisfied that the applicants should be granted that extension. To the extent that they require it, they should also be granted leave to appeal from the Primary Judgment.

The present hearing

7    In light of present Covid-19-inspired circumstances, the hearing of the applicants’ application occurred by telephone. It was initially scheduled for Wednesday, 3 June 2020. Ms Shum did not appear on that occasion. The court was informed that it had been served upon Ms Shum and evidence was led to prove that she was aware of its having been filed. Nonetheless, I resolved to adjourn the hearing for a week. The application was heard on Wednesday, 10 June 2020.

8    Ms Shum did not attend the hearing on that day. In the evening of Tuesday, 9 June 2020, she sent a lengthy email to the court, in which she complained about having not been properly served with the applicants’ originating application. Her complaint, so far as I follow it, is that that application was served upon her by email, rather than personally. The applicants led evidence through their solicitor, Ms Alexander, about service of the originating application upon Ms Shum. It is the case that it was served by email dated 2 March 2020. In her 9 June 2020 email, Ms Shum referred to the 2 March 2020 email having been sent to her. Ms Alexander deposed to email correspondence in late March and early April of 2020 between her firm and Ms Shum, by which Ms Shum indicated (amongst other things) that she did not accept service of the originating application by email. Ms Alexander also deposed to an interaction between Ms Shum and Judge Riley in the FCCA on 24 April 2020, during which Ms Shum acknowledged that the applicants had made their application in this court. Notwithstanding Ms Shum’s stated unwillingness to acknowledge its having been served upon her, there is no doubt that Ms Shum is (and was) aware that the applicants have made the application that is presently before me.

9    Equally, there is no doubt that she was aware of the hearing scheduled for 10 June 2020. The court was informed that, after the initial hearing of 3 June 2020 was adjourned, the applicants, through their solicitors, sent additional email correspondence to Ms Shum alerting her to that fact, and to the hearing that was rescheduled for 10 June 2020. Additionally, the court sent correspondence to Ms Shum, both in email and hard copy format, alerting her to the 10 June 2020 hearing date.

10    Satisfied that Ms Shum was made aware of the hearing and had ample opportunity to attend it, I proceeded to hear the application in her absence.

Is leave to appeal required?

11    In my view, the applicants do not require leave to appeal from the Primary Judgment. The “declarations” (above, [4]) that it records are, plainly enough, in the nature of relief that the FCCA granted in consequence of the liability findings that it had made. Leaving aside for the moment whether it was appropriate for relief of that nature to be granted at the stage that it was, I consider that that relief can only be regarded as being final in nature. There is no such thing as an interlocutory declaration: Dovuro Pty Limited v Wilkins (2003) 215 CLR 317, 359 [127] (Kirby J), 363 [143] (Hayne and Callinan JJ); Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2014] FCA 148, [11] (Greenwood J). If the relief that was granted was not interlocutory relief, it must have been final relief: Warramunda Village Inc v Pryde (2002) 116 FCR 58, 77 [68] (Finkelstein J, Lee and Gyles JJ offering no view).

12    The body of jurisprudence in this court that inclines to the contrary view must be acknowledged. I was alerted, in that regard, to Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCA 697, [10] (Logan J), Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCA 41, [10] (Perry J) and Construction, Forestry, Mining and Energy Union v The Employment Advocate [2001] FCA 1442, [7]-[9] (Lee, Finn and Merkel JJ). It would appear that there are others: Warramunda Village Inc v Pryde (2002) 116 FCR 58, 76 [67] (Finkelstein J).

13    I have recently had occasion to state some views about the appropriateness of declaratory relief in civil remedy proceedings commenced under the FW Act: Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070, [73]-[98] (Snaden J); Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654, [120] (Snaden J); Fair Work Ombudsman v Australian Workers’ Union [2020] FCA 60, [71]-[79] (Snaden J); Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The College Crescent Case) [2020] FCA 757, [111]-[112] (Snaden J). For present purposes, I need not consider whether the practice of granting declaratory relief at the conclusion of the liability phase of a split trial is a good one. Whether it is or not, there is no warrant for doubting that the relief granted by means of the Primary Judgment was declaratory by nature. For the reasons to which I have already adverted, that relief can only have been final, as opposed to interlocutory.

14    Ultimately, I regard this question as something of a distraction. Whether the Primary Judgment was final or not, the applicants require an extension of time in order to proceed. Whether they should be granted such an extension turns, in part, upon whether or not they have a prima facie case that the Primary Judgment was attended by error and whether or not it is in the interests of justice that they should be permitted to appeal. Those are questions to which the court’s attention would turn in the event that leave to appeal were required. Ultimately, if the criteria for the granting of an extension of time are satisfied, it is very likely—possibly inevitable—that the criteria for the granting of leave will be too. For the reasons that are set out below, I am of the view that the applicants should be granted the extension of time that they require. To the extent that, contrary to my view, they require leave to appeal, I will also grant that leave.

Principles governing extensions of time and leave to appeal

15    The considerations relevant to the exercise of the court’s discretion to grant an extension of time are well established. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Perram, Farrell and Perry JJ), the full court, at [20], listed them as follows:

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)    The length of the delay is a relevant factor.

(3)    The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

16    In considering the merits of a substantive appeal (in the event that an extension is granted), it is not necessary to descend into a detailed analysis of the grounds that are proposed to be agitated. It is sufficient that the court form a “reasonably impressionistic” assessment of the applicants’ prospects: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, [21], [38] (Tracey, Perry and Charlesworth JJ); Jackamarra v Krakouer (1998) 195 CLR 516, 521 (Brennan CJ and McHugh J, with whom, in the result, Kirby J agreed; Gummow and Hayne JJ dissenting); Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12, [25] (Mortimer J).

17    The considerations relevant to the exercise of the Court’s discretion to grant leave to appeal are also well established. They include whether or not an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399 (Sheppard, Burchett and Heerey JJ); Iannuzzi v Commissioner of Taxation (2019) 268 FCR 349, 351 [3] (Kenny, Jagot and Banks-Smith JJ); and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36, [2] (Flick, Reeves and O’Callaghan JJ).

18    I turn to consider the various considerations that shape my determination of the present application.

The merits of the proposed appeal

19    As the FCA Rules require, the applicants provided to the court a draft notice of appeal that sets out the grounds that they propose to agitate in the event that they are granted an extension of time (and, should they require it, leave to appeal). It is not necessary that I should engage upon a lengthy analysis of each of the grounds and their prospects of succeeding. It is sufficient that I deal with them in summary form. For reasons that will become apparent, I accept that there is at least an arguable case that the Primary Judgment was attended by error.

20    Before the FCCA, Ms Shum alleged (amongst other things) that she was dismissed in contravention of s 340(1) of the FW Act. That provision prohibits (amongst other things) employers from engaging in “adverse action” against employees because of their possession or exercise of “workplace rights”. Ms Shum alleged that her dismissal was actuated by the fact that she had exercised various workplace rights, including by means of complaints that she had agitated about her employment, the fact that she had lodged a WorkCover claim and her commencement of an anti-bullying claim in the Fair Work Commission. The applicants (then the respondents—or some of them—before the FCCA) denied having dismissed Ms Shum for any of those reasons. Through its various officers, it maintained that Ms Shum’s dismissal was the product of a restructure, and was unrelated to the various workplace rights that she claimed to have exercised. That restructure was designed and implemented principally by the third applicant, Mr Heeney.

21    The FCCA rejected the applicants’ assertions. Of particular relevance in the present context were the following observations (Primary Judgment, [246]):

I infer that [SMRC Board chairman] Mr Oates recruited Mr Heeney on a short term contract, without interviewing any other candidates, partly for the purpose of dismissing Ms Shum and ensuring that [another employee] Mr Lee left SMRC. I infer that Mr Oates made it clear to Mr Heeney that he was required to remove Ms Shum and Mr Lee from SMRC and Mr Heeney did so. I consider that it would be naïve to think otherwise.

22    The FCCA went on (Primary Judgment, [247]) to make positive findings about why it was that Ms Shum was dismissed:

In my view, the reasons Ms Shum was dismissed from SMRC included that:

a)    she was in the finance team, and the leaders of that team, Mr Lee and Ms Shum, supported [another senior employee] Ms Semple;

b)    Mr Oates saw Ms Shum and Mr Lee as obstacles to his control of SMRC;

c)    Ms Shum embarrassed [the second applicant] Mr Oates by demonstrating to SMRC generally that he had unlawfully tried to prevent her and others from voting at the AGM;

d)    Ms Shum had complained about numerous matters;

e)    she had lodged a WorkCover claim, and, when that was rejected, took the matter further; and

f)    she had lodged an anti-bullying claim with the Fair Work Commission.

23    Later, the FCCA concluded (Primary Judgment, [249]):

I consider, on all the evidence in this case, that not only was Mr Oates aware that among the real reasons Ms Shum was dismissed were protected reasons, but he himself was actuated by those reasons, and encouraged if not required Mr Heeney to dismiss Ms Shum for those reasons.

24    The applicants submit that the conclusions summarised above were wrongly reached. That submission is put on a number of bases. First—and relying on the rule in Browne v Dunn (1893) 6 R 67 (Lords Bowen, Herschell, Halsbury and Morris)—it is said that the existence of the conspiracy that the FCCA found to have existed was not put during Ms Shum’s cross-examination of either Mr Oates or Mr Heeney (either by Ms Shum herself or by the FCCA), and was not obviously a component of the case that Ms Shum advanced. Second, it is said that those conclusions were not properly open to be made upon a correct application of s 140 of the Evidence Act 1995 (Cth). Third, it is said that the facts upon which the FCCA inferred that Ms Shum’s dismissal was the product of a conspiracy and was actuated by reasons prohibited under pt 3-1 of the FW Act did not, in fact, support the drawing of those inferences. Without expressing a view as to their prospects of success, I accept that each of those submissions is at least arguable.

25    Additionally, the applicants seek to attack a related finding within the Primary Judgment. Ms Shum alleged that her dismissal was effected in contravention of s 352 of the FW Act, in that it had been actuated by the fact that she had been temporarily absent from work due to illness or injury. The applicants (then the respondents—or some of them—before the FCCA) denied that Ms Shum had been dismissed for that reason. The FCCA did not accept their explanation and concluded (Primary Judgment, [365]) that Ms Shum was, in fact, dismissed partly because she was temporarily absent from work.

26    It is not apparent from the Primary Judgment—and the applicants contend that there was no evidential basis upon which the FCCA might properly have concluded—that Ms Shum was, in fact, temporarily absent from work due to illness or injury (within what is contemplated by the use of that phrase in s 352 of the FW Act). Regulation 3.01 of the Fair Work Regulations 2009 (Cth) identifies illnesses or injuries that do and do not qualify in that regard. An illness or injury that extends for more than three months, in respect of which period the relevant employee is “not on paid personal/carer’s leave”, is not an illness or injury to which s 352 of the FW Act applies: Fair Work Regulations 2009 (Cth), reg 3.01(5). At the time of her dismissal, Ms Shum had been absent from work for more than three months, for at least some of which time she did not receive paid personal or carer’s leave. It is at least arguable that the FCCA’s conclusion was reached in error—although, again, I express no view about the prospects of success that such a contention might enjoy.

27    The applicants also attack the decision of the FCCA to make the declarations that it made. They submit that they were wrongly made, given that:

(1)    Ms Shum did not seek declaratory relief; and

(2)    the applicants were not invited to make submissions as to whether any such relief should be granted.

28    Plainly, the existence of the declarations is secondary to the applicants’ attack in the present case. If their appeal proceeds and is successful, the findings upon which the declarations were based will fall away, and it will necessarily follow that the declarations themselves will be set aside. Nonetheless, I accept that it is sufficiently arguable—even independently of the other, more substantive grounds that the applicants hope to press—that the FCCA’s decision to make the declarations that were made was attended by appellable error.

29    For those reasons, I am satisfied that the proposed appeal (in the event that the applicants are permitted to agitate it) rests upon evidential and legal foundations sufficiently sound to warrant in favour of the grant of an extension (and, if it is required, leave to appeal).

The interests of justice

30    By the Primary Judgment, the second and third applicants have been found to have conspired to effect Ms Shum’s dismissal (by the first applicant) for reasons that pt 3-1 of the FW Act prohibits. For the reasons that they have identified presently, there is at least a basis for supposing that those findings have been arrived at in error (although, again, I say nothing about the substantive prospects of the applicants succeeding in that regard). Were the court now to permanently foreclose upon their ability to argue in support of those findings being set aside, they would remain liable to other relief (including the imposition of pecuniary penalties) in circumstances that may not warrant it.

31    That being so, I am satisfied that there is a risk that the applicants will be subjected to substantial injustice in the event that an extension of time and, if required, leave to appeal are not granted.

The length of and explanation for the delay

32    The present application was lodged with the court 23 days after the Primary Judgment was pronounced. That was nine days later than the deadline by which they were to file an application for leave to appeal (if that is what was required) or five days prior to the deadline by which the applicants were to file a notice of appeal. On any view, the delay was not significant. I do not consider that it should incline the court in favour of or against the granting of an extension.

33    The applicants’ explanation for missing the applicable deadline is simple enough. Given the length of the Primary Judgment (91 pages and 368 paragraphs), and the vast volume of transcript (eight days’ worth) and documentary evidence (five volumes’ worth) that was before the FCCA, they maintain that they were unable to consider and act upon their rights in the time that they had. It was not until 18 February 2020—13 days after the Primary Judgment was pronounced—that they received written advice from counsel about the prospects of an appeal.

34    Respectfully, the applicants’ explanation for the delay is not especially compelling. There are many examples of matters more complex than this one being made the subject of appeal within the deadline for which the FCA Rules provide. Nonetheless, it is apparent that the missing of the deadline in this case (whichever deadline applied) did not occur because of avoidable procrastination or delinquency on the applicants’ part. In light of the very small delay that is here in play (insofar as concerns the application for leave to appeal) and the confusion in the authorities as to whether or not leave to appeal was required, I consider that the applicants have offered an explanation that warrants the granting of an extension.

Prejudice to Ms Shum

35    Plainly given her absence from the hearing, Ms Shum did not submit that a decision to grant the applicants an extension of time (and, if required, leave to appeal) would visit upon her any particular prejudice. Given the short period of delay that has occurred in the present case, it is difficult to see what prejudice there might be.

Disposition

36    Having regard to all of the factors to which I have adverted above, I consider that it is proper to extend the deadline by which the applicants were to appeal (or to seek leave to appeal). For reasons already explored, I do not consider that they require leave to appeal. Nonetheless—and in case I am wrong about that, as at least some of the jurisprudence would suggest—I consider it appropriate in the circumstances to grant the applicants leave to appeal, to the extent that it is required.

Associate:

Dated:    16 June 2020