Federal Court of Australia
Tamu v World Vision Australia [2021] FCA 333
ORDERS
QUD 35 of 2021 | ||
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant’s application for leave to appeal filed on 3 December 2020 in proceeding QUD 372 of 2020 be dismissed.
2. The applicant’s application for leave to appeal filed on 12 February 2021 in proceeding QUD 35 of 2021 be dismissed.
3. The applicant’s interlocutory application filed on 21 December 2020 in proceeding QUD 372 of 2020 be dismissed.
4. The applicant’s interlocutory application filed on 11 January 2021 in proceeding QUD 372 of 2020 be dismissed.
5. The respondent file and serve any submissions as to costs (not exceeding five pages) by 4.30 pm on 16 April 2021.
6. The applicant file and serve any submissions as to costs (not exceeding five pages) by 4.30 pm on 23 April 2021.
7. The respondent file and serve any submissions as to costs in reply (not exceeding one page) by 4.30 pm on 28 April 2021.
8. Any issue of costs will be decided on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
RANGIAH J:
1 In proceeding QUD 372 of 2020, the applicant has filed:
(1) an application for leave to appeal against orders of the Federal Circuit Court of Australia delivered on 17 November 2020, striking out the applicant’s initiating application in Form 2;
(2) an interlocutory application seeking, among other orders, a declaration that the respondent has abused the process of the Court;
(3) an interlocutory application seeking a stay of the orders made on 17 November 2020.
2 In proceeding QUD 35 of 2021, the applicant has applied for leave to appeal against orders of the Federal Circuit Court made on 8 February 2021. The orders, relevantly, adjourned the respondent’s application for summary judgment in respect of the applicant’s further amended application in Form 2 filed on 28 January 2021 and dismissed two applications in a case (as interlocutory applications are described in the Federal Circuit Court) filed by the applicant on 3 and 7 December 2020. The application in a case of 3 December 2020 sought, among other orders, a declaration that, “the [r]espondent’s underpayment of employees was deliberate and intentional and breaches of the law (sic)”. The application in a case of 7 December 2020 simply sought a “civil penalty”.
3 The primary judge published reasons in respect of the orders of 17 November 2020, but not in respect of the orders of 8 February 2021. Both sets of orders of the Federal Circuit Court were interlocutory, and the applicant requires leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
4 The two applications for leave to appeal and the two interlocutory applications filed by the applicant were heard concurrently on 3 March 2021, and I delivered an ex tempore judgment. Prior to publication of the reasons for judgment, the Registry brought to my attention that the applicant had electronically lodged written submissions in the form of an affidavit, but that the affidavit had not been accepted for filing at the time the applications for leave to appeal were heard. The applicant had not drawn this matter to my attention at the hearing. Consequently, I did not have regard to the applicant’s written submissions at the hearing. I decided to set aside the judgment pursuant to r 39.04 of the Federal Court Rules 2011 (Cth) and list the applications for further hearing to allow the making of further submissions taking into account the applicant’s affidavit.
5 The further hearing on 17 March 2021 had to be adjourned as the applicant was unable to be heard when connected to the Court by telephone, apparently due to some failure of technology. The parties then consented in writing to the applications being heard and determined on the papers.
6 In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50, the Full Court held:
[24] There are no exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. However, two important factors are whether the judgment is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused, supposing the judgment to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [26].
[25] Appellate courts exercise “particular caution” in reviewing decisions pertaining to practice and procedure: Adam P Brown Male Fashions at 177. The striking out of paragraphs of the ASOC was a matter of practice and procedure.
[26] Leave to appeal is more readily given where the interlocutory judgment affects a party’s substantive rights: Minogue v Williams [2000] FCA 125 at [19]. In this case, the judgment does not affect the applicant’s substantive rights since the primary judge gave the applicant leave to replead.
7 In the present case, the orders of the Federal Circuit Court relate to matters of practice and procedure. Under the orders of 17 November 2020, the applicant was granted leave to replead, and the applicant took advantage of that leave and filed a further application in Form 2. The orders of 8 February 2021 merely adjourned the respondent’s application for summary judgment and dismissed the applicant’s two applications in a case seeking relief that ought to be pursued as part of the substantive proceeding. The applicant has not demonstrated that substantial injustice would result if leave to appeal were refused.
8 In the reasons for the judgment of 17 November 2020, the primary judge concluded that the various versions of the application in Form 2 filed by the applicant should be struck out on the basis that they were embarrassing in the legal sense, did not disclose a reasonable cause of action, and were likely to cause delay and waste costs. In oral submissions, the applicant focussed upon an assertion that, before the primary judge, he had applied for an adjournment but was not aware that it had been refused until the reasons for judgment were published. Assuming that the applicant’s assertion is correct, it would appear that his Honour must have reserved the question of whether to grant an adjournment and heard argument upon the substantive issues in the meantime. The applicant has not demonstrated that this course raises any arguable case of denial of procedural fairness.
9 In his written submissions, the applicant asserts that the primary judge erred in law, including by failing to take into account relevant submissions made by the applicant and making findings not reasonably open on the evidence. However, the applicant has simply failed to demonstrate any tenable case that the orders of 17 November 2020 were affected by error.
10 Neither has the applicant demonstrated any tenable case that the orders of 8 February 2021 were affected by error.
11 Further, the applicant has not demonstrated any basis for the grant of either of the interlocutory applications he has made to this Court.
12 I will order that the two applications for leave to appeal and the two interlocutory applications be dismissed.
13 I will hear the parties as to costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. |
Associate:
