Federal Court of Australia

Marks v Trebilcock [2021] FCA 536

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time in which to commence an appeal is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    By an application filed in the Court on 11 December 2020 and amended by leave on 23 April 2021, the applicant (Mr Marks) seeks an extension of time in which to commence an appeal against orders made on a wages claim by the South Australian Employment Tribunal (the SAET) on 22 June 2018. The period of extension sought by Mr Marks is substantial, but that is not the only unusual feature of the application.

Background

2    The first respondent commenced proceedings in the SAET on 29 September 2017 claiming amounts said to be due to him pursuant to the Joinery and Building Trades Award 2010 (the Award) made by the Fair Work Commission (the FWC) and the imposition of pecuniary penalties. By reason of ss 539 and 545(3) of the Fair Work Act 2009 (Cth) (the FW Act), the SAET had jurisdiction to hear and determine those claims.

3    The Court has not been provided with a copy of the first respondent’s application in the SAET but it is evident that he asserted that he had been employed either by the partnership comprising Mr Marks, Mr Stephen Coggins, the Marks Family Trust and the Stephen Coggins Family Trust (which traded as New Wave Constructions (SA)), or by New Wave Group Pty Ltd, or by Mr Marks, or by Mr Stephen Coggins as individuals.

4    The application was heard by Lieschke DP in the SAET on 21 and 22 June 2018. Mr Marks represented himself as well as the other respondents in the proceedings. At the conclusion of the hearing on 22 June 2018, Lieschke DP gave an ex tempore judgment and made orders as follows:

1.    The Applicant was employed at all material times by Stephen Marks in his personal capacity.

2.    I order Stephen Marks to pay to the Applicant within 21 days the following amounts:

2.1    Unpaid wages of $99,403, less income tax, and provision of a PAYG statement or other documentary evidence of the tax paid to the ATO.

2.2    Interest on unpaid wages of $17,892, in full.

2.3    Compensation of $39,221 for unpaid superannuation contributions ($33,238) and interest ($5,983), in full.

2.4    Unpaid accrued annual leave of $22,413, les (sic) income tax, and provision of a PAYG statement or other documentary evidence of the tax paid to the ATO.

2.5    Interest on unpaid leave of $2,017, in full.

3.    I order Stephen Marks to pay to the Applicant legal costs of $660, incurred by Mr Mark’s unreasonable failure to attend the hearing scheduled for 21 June 2018.

4.    I adjourn the issue of the claim for reimbursement of the value of the Applicant’s tools to be heard at the same time as the application for Pecuniary Penalties.

5.    I dismiss the remaining claims of the applicant.

5    In summary, Lieschke DP upheld the first respondent’s claim that he had been an employee, found that his employer was Mr Marks in his personal capacity, made orders for the payment of wages and other entitlements, and adjourned to a further hearing the first respondent’s claims for the imposition of pecuniary penalties and for reimbursement of the value of certain tools.

6    A transcript of Lieschke DP’s ex tempore reasons has not been provided to this Court.

7    The SAET has not yet made orders with respect to the claim for the imposition of pecuniary penalties. The Court was not informed of the position with respect to the claim for reimbursement of the value of tools.

8    On 13 July 2018, Mr Marks (then represented by a lawyer) commenced an appeal in the SAET, purportedly pursuant to s 67(3) of the South Australian Employment Tribunal Act 2014 (SA) (the SAET Act), against the orders of Lieschke DP. The Court has not been provided with a copy of that Notice of Appeal. Mr Marks asserts that he had earlier (on 28 June 2018) while unrepresented commenced, or attempted to commence, an appeal in the SAET, but neither the SAET nor the first respondent have any record of him doing so. It is not necessary to make any findings as to that issue as the first respondent does not dispute that the appeal lodged on 13 July 2018 had been commenced within the prescribed period for the commencement of an appeal in the SAET.

9    In the week before 13 July 2018, Mr Marks (represented by his solicitor) applied for a stay of execution of the orders made by Lieschke DP on 22 June 2018, pending the determination of the appeal. In the hearing of that application on 6 July 2018, Mr Marks’ solicitor told Lieschke DP that an appeal had already been commenced but, as noted, it had not been served on the first respondent or his solicitor. It seems that Lieschke DP ordered a “partial stay” on 6 July 2018, that is, a stay of execution of the balance of the judgment on condition that Mr Marks pay to the first respondent the gross amount (before tax) of $50,000. The solicitor for the first respondent has deposed that this stay order of Lieschke DP was “formalised” by an order of the President of the SAET on 20 August 2018 but the evidence does not indicate the circumstances by which that came about.

10    By reason of s 86 of the SAET Act, the SAET does not have power to enforce its own monetary orders. Instead, the amount specified in a monetary order of the SAET may be recovered by an action in either the District Court or the Magistrates Court in South Australia as if it were a debt. On 23 August 2018, the first respondent applied to the District Court for judgment in the sum of $28,160. The first respondent’s solicitor deposes that the sum of $28,160 comprised $27,500 for wages (being, as I understand it, the after tax portion of the sum of $50,000 not stayed by the SAET’s orders) and $660 for costs. The first respondent also applied for freezing orders. On 3 October 2018, Chief Judge Evans in the District Court of South Australia entered judgment for the first respondent in the sum of $28,160 and ordered Mr Marks to pay costs of $940.

11    When Mr Marks did not make the payment of the $28,160, the first respondent filed a bankruptcy petition in the Federal Circuit Court (the FCC). That petition was to be heard on 20 August 2019. Mr Marks paid the $28,160 on 19 August 2019, ie, the day before the hearing in the FCC. The first respondent’s solicitor deposes, and I accept, that Mr Marks has still not paid to the Australian Taxation Office the balance of the sum of $50,000 which was not the subject of the stay made on 6 July 2018.

12    Returning to the course of events in the SAET, on 9 August 2018 the first respondent applied to have the appeal struck out on the basis that the effect of s 565 of the FW Act was that the SAET did not have jurisdiction to hear it.

13    On 20 August 2018, the SAET President directed that the appeal and the first respondent’s strike out application be heard by the Full Bench of the SAET, sitting as the South Australian Employment Court (SAEC), on 27 February 2019. That hearing must have been vacated as it took place eventually on 22 July 2019. The first respondent did not then pursue his strike out application, taking the view that, by reason of the listing of the application concurrently with the appeal, he would have to incur the costs of the appeal in any event. Although the parties had prepared for a full hearing on 22 July 2019, the SAET heard only the parties’ submissions on the application of the present applicant to adduce further evidence, and reserved judgment on that question. The hearing of the remaining issues on the appeal was adjourned.

14    The SAET delivered judgment on the further evidence application on 28 August 2019, allowing it in part and refusing the balance: SJ Coggins and SL Marks & Marks Family Trust & Stephen Coggins Family Trust t/as New Wave Constructions (SA) v Trebilcock [2019] SAET 183. The matter was then adjourned for directions with respect to the reconvening of the appeal.

15    The evidence did not disclose the course of events in the SAET thereafter. On the hearing of the present application, counsel for the first respondent said that his solicitors had drawn the attention of the SAET to this Court’s decision in Shahin Enterprises Pty Ltd v Mathew [2020] FCAFC 57; (2020) 274 FCR 557, delivered on 31 March 2020. In that decision, the Full Court expressed the view that, while Lieschke DP held the substantive office of magistrate, s 565(1A) of the FW Act had the effect that an appeal from a decision of Lieschke DP in the exercise of his office as a Deputy President of the SAET was not an appeal from a court “exercising summary jurisdiction”. That had the consequence that an appeal from a decision of Lieschke DP in the exercise of the office of Deputy President of the SAET could lie only to this Court.

16    The Full Bench of the SAET then invited submissions and, by a decision delivered on 25 August 2020, concluded that it did not have jurisdiction to hear the appeal. Accordingly, it dismissed the appeal as incompetent: S.J. Coggins & S.L. Marks & Marks Family Trust & Stephen Coggins Family Trust t/a New Wave Constructions (SA) v Trebilock [2020] SAET 164.

17    Some three and a half months later (on 11 December 2020), the applicant (as a self-represented litigant), filed in this Court his application for an extension of time in which to commence an appeal. He had earlier attempted to file documents of some kind, but these had not been accepted for filing. I will return to those attempts later.

18    The first respondent had applied to Lieschke DP to have the partial stay orders of 6 July 2018 set aside. Lieschke DP did so on 16 October 2020 in a telephone directions hearing in which the first respondent’s solicitor and Mr Marks personally participated.

19    By letter dated 21 October 2020 to Mr Marks, the first respondent’s solicitor sought payment of the balance of the judgment sum. Payment not having been received, the first respondent applied to the District Court on 16 November 2020 for freezing orders and, on 18 December 2020, applied to the District Court for judgment in respect of the remaining portion of the SAET judgment of 22 June 2018. Mr Marks opposed that application and it was heard on 5 February 2021. Judge Thomas, who heard the application, considered that Mr Marks had no substantive defence to the claim for a statutory debt under s 86 of the SAET Act. In particular, her Honour accepted that Mr Marks’ attempt to pursue an appeal in this Court did not constitute a ground of substantive defence. Judge Thomas entered summary judgment in favour of the first respondent in the sum of $153,446. However, her Honour granted a stay of enforcement of the judgment on condition that Mr Marks and New Wave Australia Pty Ltd (which was joined to the proceeding as an interested party) cause $163,000 to be paid into the District Court Suitors Fund.

20    The sum of $163,000 was paid into the District Court Suitors Fund on 17 February 2021. Then on 19 February 2021, Judge Thomas extended the stay of enforcement of the judgment sum until further order, but adjourned the matter to 7 May 2021. It is evident that her Honour intended that the stay should be revisited once the outcome of the present application is known.

The power to extend

21    Rule 36.03 of the Federal Court Rules 2011 (Cth) (the FCR), as in force in 2018, required that the appeal to this Court be commenced within 21 days of the decision of Lieschke DP on 22 June 2018. By reason of the Federal Court Amendment (Court Administration and Other Measures) Rules 2019, that period is now 28 days.

22    The Court has a discretionary power to extend the time fixed by r 36.03 – see r 1.39 of the FCR.

23    The principles on which the Court acts in considering the exercise of the discretionary power are settled, having been discussed in numerous authorities. The principal matters to which the Court has regard in determining whether it is just to grant an extension are:

    the length of the extension of time sought;

    the explanation for the appeal not having been commenced in time;

    the prejudice to the applicant if the extension is refused;

    the prejudice to the first respondent if the extension is allowed; and

    the interests of justice more generally taking into account matters such as the conduct of the parties in relation to the proposed litigation and the rationale for the limitation period.

24    Mr Marks, as the applicant for the extension, has the onus of establishing that the justice of the case warrants the exercise of the discretion in his favour.

The length of the extension

25    On any view, Mr Marks requires a substantial extension of time. Some two years, five months and 19 days elapsed from 22 June 2018 before he filed the application for the extension of time in which to commence the appeal on 11 December 2020.

The explanation for the delay

26    It is appropriate to commence consideration of this aspect of the matter by making two preliminary observations.

27    First, the provision of an explanation for the matter being out of time is not an essential precondition for the favourable exercise of the discretion to extend time: Comcare v A’Hearn (1994) 45 FCR 441 at 444. However, the explanation is a very relevant consideration as several authorities indicate: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 345; Garrett v Universal Holdings Pty Ltd [2007] FCA 626 at [11].

28    Secondly, as applicants for an extension of time have the onus of establishing the matters indicating that the extension is appropriate, it is to be expected that their explanations will be full and frank. That is especially so as the circumstances giving rise to a proceeding being out of time are often peculiarly within the knowledge of an applicant. In those cases in which the explanation is said to lie in the conduct or omissions of the applicant’s legal practitioner, the giving of the full and frank explanation may involve applicants waiving legal professional privilege over relevant communications so that the Court may be informed fully of the circumstances.

29    At first blush, the delay in the commencement of an appeal in this Court in the present case may be thought attributable to a mistaken belief by Mr Marks that he had a right of appeal to the SAET against the decision of Lieschke DP, to his pursuit of such an appeal and to the time which elapsed before the lack of jurisdiction of the SAET was recognised. However, on closer analysis, the position is not so straightforward: first, because Mr Marks has not explained in any detail the belief which led him to commence the appeal in the SAET, and secondly, because it is apparent that such a belief is not the sole reason for the appeal being so substantially out of time.

30    The first of these matters arises because Lieschke DP had indicated to Mr Marks and his solicitor on 6 July 2018 that an appeal against the judgment of 22 June 2018 would be to this Court and not to the SAET. At that time, Mr Marks was still within time to commence an appeal in this Court. Lieschke DP gave this indication in the course of the hearing on 6 July 2018 of the application for a stay. The transcript reveals the following exchange between Lieschke DP and Mr Marks’ solicitor:

Lieschke DP:    [Your appeal] might be in the wrong jurisdiction, but that’s up to you. You might need to go to the Federal Court.

Solicitor:    I have actually had some discussions with counsel overnight about that and it did come down to, as I understand it and I’m happy to have this conversation with you as to the capacity in which you’re sitting in, whether or not this was a court of summary jurisdiction or not, whether you were sitting indeed as a magistrate or not at the time.

Lieschke DP:    There’s no magistrates appointed to the [SAET]. I know confusion … has been caused, because I’ve been directed that my decisions must have Deputy President or Magistrate … but there’s no such title under this Act. I was appointed as Deputy President.

Solicitor:    If that’s the case then, the appeal definitely lies with the Federal Court and that’s certainly where that will be directed.

(Emphasis added)

31    As already noted, at the hearing on 6 July 2018 the solicitor believed that Mr Marks (acting in person) had already commenced an appeal in the SAET. The solicitor must have realised soon after that his belief was erroneous because, on 13 July 2018, he filed Mr Marks’ appeal in the SAET. The reason why he did so, despite the exchange on 6 July 2018, has not been disclosed to the Court. Mr Marks has deposed only:

[13]    I sought legal advice on the meaning and effect of the Orders [of 22 June 2018] and on that legal advice and with the assistance of [my solicitor], a Notice of Appeal was lodged with the Full Bench of the SAET with respect to an Appeal from the orders.

32    As is apparent, Mr Marks does not address the indication which Lieschke DP had provided on 6 July hearing concerning the appropriate forum for an appeal, does not attempt to explain the process of decision making leading to the filing of a notice of appeal in the SAET on 13 July 2018 rather than in this Court, and does not depose to the instructions he gave to the solicitor about commencing the appeal in the SAET. Indeed, had it not been for the first respondent’s solicitor, this Court would not even have been informed of the indication by Lieschke DP. Counsel for the first respondent said that his instructions were that both Mr Marks and the first respondent had been present personally in the SAET on 6 July 2018. If that be so, Mr Marks must have heard the Deputy President’s remarks. That makes all the more surprising his failure to address the matter in his affidavit. Moreover, there is no affidavit from Mr Marks’ former solicitor which might explain why the appeal was commenced in the SAET.

33    As things stand, Mr Marks’ pursuit of an appeal in the SAET is puzzling having regard to:

(a)    Lieschke DP having informed his solicitor on 6 July 2018 that an appeal to the SAET “might be in the wrong jurisdiction” and that “you might need to go to the Federal Court”, and having given reasons why that was so;

(b)    Mr Marks’ solicitor’s acceptance that the matters mentioned by Lieschke DP meant that “the appeal definitely lies with the Federal Court”; and

(c)    even if there was no certainty that the SAET lacked jurisdiction to hear and determine the appeal, there was no reason to doubt the jurisdiction of this Court to do so – see s 565(1) and (1A) of the FW Act. That being so, the prudent course would have been to commence the appeal in this Court.

34    Moreover, the applicant persisted with the appeal in the SAET even after the first respondent had applied on 9 August 2018 to have it struck out on the basis that the SAET lacked jurisdiction to hear and determine it. That by itself should have prompted Mr Marks to reconsider the appropriateness of his pursuit of the appeal in the SAET. However, he has not provided any evidence as to whether there was a reconsideration and, if so, the decision made on the basis of that reconsideration.

35    It is true that, ultimately, the first respondent did not pursue the strike out application. However, contrary to the submission of Mr Marks’ counsel, that does not mean that the strike out application ceases to have significance. It appears that the first respondent’s decision not to pursue the strike out application was not communicated to Mr Marks (or his solicitor) before the first respondent filed an outline of submissions on the appeal in the SAET, presumably in the weeks preceding 27 February 2019. This meant that there was a substantial period in which Mr Marks knew not only the views of the Deputy President provided on 6 July 2018, but also that the first respondent was challenging the SAET’s jurisdiction. Mr Marks has not sought to explain to the Court his decision making in these circumstances.

36    However, Mr Marks must have believed that the SAET did have jurisdiction to hear and determine his appeal. His action in making the appeal to the SAET is inexplicable otherwise. Moreover, the Full Bench of the SAET did not itself have concerns about its jurisdiction, as it proceeded to hear and determine one aspect of the appeal. Although Mr Marks has not provided evidence to this effect, I accept that the attitude of the SAET in listing the strike out application may have provided him with some assurance that he had commenced his appeal in an appropriate forum.

37    As already noted, following the decision of this Court in Shahin Enterprises v Mathew, the Full Bench of the SAET sought further submissions from the parties as to its jurisdiction. The evidence on the present application did not indicate when the Full Bench made its request, nor when the submissions were provided. Mr Marks appears to have been unrepresented in the SAET during this period. I am willing to accept that the time between 31 March 2020 and 25 August 2020 was taken up with resolution of the issue concerning the jurisdiction of the SAET, but it must have been obvious to Mr Marks during that period that there was a very real prospect that the Full Bench would find that it lacked jurisdiction to hear and determine his appeal.

38    Those circumstances put into sharp focus the delay of Mr Marks after the Full Bench decision on 25 August 2020. A further three months and 16 days elapsed before he filed the application for the extension of time. Contrary to a submission of Mr Marks’ counsel, Mr Marks did not become out of time only 28 days after 25 August 2020. The time in which to commence the appeal in this Court had been running ever since 22 June 2018. One could therefore have expected Mr Marks to have acted with some alacrity after the Full Bench decision of 25 August 2020 (if not before).

39    The evidence indicates that Mr Marks attempted on four occasions before 11 December 2020 to file documents, using this Court’s electronic filing system, but he did not provide copies of the documents he had sought to file. His solicitor has, however, provided copies of screen shots showing the reasons for the Court’s rejection of the lodged documents in relation to each attempted filing, which I set out below:

40    It will be seen that Mr Marks first attempted to lodge a document in this Court after Lieschke DP had on 16 October 2020 lifted the partial stay orders.

41    The reference to “Form 122” in the Registry message of 20 October 2020 suggests that Mr Marks had lodged for filing a Notice of Appeal. He has not provided a copy of the “accompanying email” to which reference is made in the screen shot of 1 November 2020. It is not apparent from any of screen shots that Mr Marks attempted to file an application for an extension of time in which to appeal and it may be pertinent in this respect that the affidavit which he lodged with the application for the extension of time on 11 December 2020 had been made only on the same day.

42    Although the evidentiary position is not satisfactory, I accept that Mr Marks had, on each of the four days, attempted to lodge either a notice of appeal or documents associated with a notice of appeal, but had been unsuccessful in doing so because of shortcomings in the documents. It is, however, pertinent that just on two months elapsed from 25 August 2020 before he made his first attempt, and that a further period of just on two months elapsed from that attempt until the lodging of the application on 11 December 2020. While Mr Marks was not completely inactive in that period, he has not explained the initial delay of two months. Nor does he explain why he did not act promptly to rectify the identified defects in the documents he had lodged for filing, or seek legal advice about them, or even make contact with this Court’s Registry with the view to obtaining further information as to what was required to get the documents into proper form. In saying this, I am not overlooking Mr Marks’ claim that he had only appreciated recently that he was out of time in which to commence an appeal to this Court. That claim is implausible, especially given Mr Marks’ familiarity with legal processes to which I will return shortly.

43    In summary, while Mr Marks’ pursuit of the appeal in the SAET is in large part the explanation for the appeal to this Court not having been commenced in time, he has not explained satisfactorily why, in the face of the clear indication of the Deputy President, he had adopted that course. Moreover, he has not explained satisfactorily the further delay which occurred after 25 August 2020, when it must have been obvious to him that, if he wished to pursue an appeal in this Court, he would need to do so with alacrity.

The prejudice to Mr Marks if the extension is refused

44    Obviously enough, if the extension of time is refused, Mr Marks will not be able to pursue an appeal against the judgment of Lieschke DP and he will not be able to have the orders of 22 June 2018 set aside or varied. However, that will be prejudicial to Mr Marks only if he thereby loses the opportunity to advance grounds of appeal which are at least reasonably arguable. The parties, and in particular Mr Marks, gave relatively little attention to this aspect of the matter.

45    Mr Marks annexed a draft Notice of Appeal to his affidavit made on 11 December 2020. His solicitor annexed a revised draft Notice of Appeal to her affidavit made on 11 March 2021. It is the revised draft which Mr Marks wishes to file. It contains six grounds which, in summarised form, impute the following errors to Lieschke DP in the decision of 22 June 2018:

(a)    the finding that the employer of the first respondent was Mr Marks himself;

(b)    errors in the calculation of the unpaid wages;

(c)    in consequence of the error in the calculation of the unpaid wages, an incorrect calculation of the interest awarded under s 547 of the FW Act;

(d)    errors in the calculation of the first respondent’s entitlements to superannuation contributions, including errors in finding that:

(i)    the first respondent was covered by the Award; and

(ii)    the SAET had jurisdiction to make an order with respect to unpaid superannuation contributions;

(e)    errors in the calculation of the first respondent’s outstanding annual leave entitlements; and

(f)    in consequence of the error with respect to annual leave, a miscalculation of the first respondent’s entitlement to interest under s 547 on the unpaid annual leave.

46    The Court has not been provided with a copy of the Notice of Appeal in the SAET and is accordingly unable to compare the grounds in the second draft with those which Mr Marks sought to pursue in the SAET. However, Mr Marks deposes that he wishes to pursue in this Court much the same matters as he had sought to pursue in the SAET. Subject to the matter to be considered next, I am willing to infer that the grounds may not differ very much.

47    Counsel for the first respondent submitted that one difference between the draft Notice of Appeal annexed to Mr Marks’ affidavit of 11 December 2020 and that annexed to the solicitor’s affidavit of 11 March 2021 is that Mr Marks no longer disputes the finding that the first respondent was an employee working under a contract of service. Instead, his dispute goes to the identity of the employer found by Lieschke DP. I did not understand counsel for Mr Marks to dispute that characterisation of the revised Notice of Appeal. It seems that this revision will result in a significant change of focus in the appeal as a principal focus of the affidavit of Mr Marks of 22 June 2018 which, as I understand it, comprised in large part his evidence in the proceedings before Lieschke DP was his contention that the first respondent was engaged as an independent contractor, and not as an employee. Relatively little of the affidavit, and for that matter, the written submissions of Mr Marks’ solicitor in the SAET, were directed to the proper identity of the person or persons by whom he was employed.

48    A fundamental difficulty for Mr Marks in showing that his grounds are reasonably arguable is that he has not provided the Court with a copy of the ex tempore reasons of Lieschke DP on 22 June 2018 nor with a transcript of the SAET proceedings. This makes it practically impossible for the Court to make any preliminary assessment of whether there are specific errors in the Deputy President’s reasons.

49    A further difficulty for this Court in making some assessment of the arguability of Mr Marks’ proposed grounds of appeal is that it is evident from the outline of submissions prepared in connection with the appeal to the SAET that Mr Marks places considerable reliance on the further evidence which he will ask the Court to receive. As previously noted, that application was partially successful in the SAET. In the absence of agreement by the parties, the Full Court of this Court will have to consider afresh the application to adduce further evidence. The index to the Appeal Book lodged in the SAET indicates that the further evidence proposed is substantial as it, and the documents associated with it, comprised some 426 of the 1,045 pages in the Appeal Book. Accordingly, it seems evident that, if the Court does not receive the further evidence, the prospects of Mr Marks pursuing his appeal successfully will be impaired.

50    Mr Marks’ ground of appeal concerning the miscalculation of the outstanding wages by Lieschke DP has, to a substantial extent, become moot. That is because the first respondent has recognised a miscalculation and earlier this year, applied to Lieschke DP to have it corrected. On 20 April 2021, Lieschke DP made an order pursuant to s 81(1)(c) of the SAET Act:

(a)    substituting the figure of $69,400 for the figure of $99,403 in order 2.1 made on 22 June 2018;

(b)    substituting the figure of $12,492 for the figure of $17,892 in order 2.2 made on 22 June 2018.

51    As is apparent, the corrections reduced the first respondent’s entitlements by approximately $35,000.

52    I note that the parties remain in dispute as to whether there should be a further correction in respect of the calculation of the value of a car provided by Mr Marks to the first respondent. Lischke DP has reserved consideration of a correction of that kind.

53    For the reasons given earlier, it is very difficult for this Court to make even a preliminary assessment of the arguability of the grounds in the revised draft Notice of Appeal. It is certainly not possible to find that the grounds are reasonably arguable. The best that can be said is that, if the extension is not granted, Mr Marks will not have the opportunity to advance the grounds framed in the revised draft Notice of Appeal.

Prejudice to the first respondent if the extension is allowed

54    The first respondent contends that he will be prejudiced by the grant of an extension of time. He points to the following matters:

(a)    some two and a half years elapsed before Mr Marks filed his application for the extension of time and, during that time, he has recovered only $28,160 from Mr Marks. That is to say, he has not had the benefit of the monies to which he has been found entitled;

(b)    if an extension is granted, there is the prospect that he will be held out of the monies for a significant further period;

(c)    Mr Marks has not made the payments of taxation to the Australian Taxation Office requested under the PAYG scheme, with the consequence that he has not been able to obtain a taxation refund;

(d)    he will be required to defend an appeal against the orders of Lieschke DP made on 22 June 2018 for a second time, having been fully prepared to argue the merits of the appeal on 22 July 2019 in the SAET. His solicitor has deposed that the first respondent incurred costs of $46,846.25 in connection with the appeal in the SAET. While he may not have to repeat all the same work in connection with the appeal to this Court, much of the work will have to be done again and, having regard to the terms of s 570 of the FW Act, the extra costs may not be recoverable;

(e)    in the absence of any application by Mr Marks for an extension of time in which to appeal to this Court, he took enforcement action in the District Court of South Australia in late 2020. The costs he incurred in doing so ($13,200 to date) will be wasted and Mr Marks has not even offered to meet those costs, let alone shown an ability to do so; and

(f)    he will face continued uncertainty about the ultimate outcome of the claim.

55    I note that the first respondent has not deposed to any particular prejudice by way of being unable to enter into particular transactions or to discharge particular liabilities by reason of being held out of the monies due to him under the judgment. Nevertheless, I accept that a prolongation of the period during which the first respondent may not be able to recover the judgment sum, is likely to be prejudicial in a general way.

56    The prejudice to the first respondent is diminished by the circumstance that he has been aware of Mr Marks’ challenge to the orders of 22 June 2018 almost from the time they were first made. Putting to one side the period in 2020 between 25 August and 13 December, this is not a case in which Mr Marks’ challenge to the orders of 22 June 2018 comes as a complete surprise to the first respondent.

57    I accept that the first respondent may well be prejudiced by having incurred wasted costs. I also note that Mr Marks has not indicated a willingness to meet those costs in any event, as his counsel referred only to the potential for an order being made against him pursuant to s 570 of the FW Act.

58    It is likely that the payment by Mr Marks of $163,000 into the District Court Suitors Fund as the condition of obtaining a stay of the enforcement proceedings pending the determination of his entitlement to appeal will militate some of the prejudice suffered by the first respondent. However, the Court has not been told of the terms upon which the payment was made.

The interests of justice more generally

59    The 21 day (now 28 day) time limit in which appeals to this Court are to be commenced serves a real purpose in the administration of justice. The rationale for limitations of the period in which plaintiffs may commence claims for damages for personal injury was discussed in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551-3 (McHugh J). Some of the matters to which his Honour referred are also pertinent in the present context. McHugh J noted, amongst other things, that it can be “oppressive, even cruel” to a defendant to allow actions to be brought belatedly, and that defendants should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them, at 552. Accordingly, limitation periods are not to be seen as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. Instead, r 36.03 represents a judgment, in this case by the Court as expressed in its Rules concerning the bringing of appeals, that the administration of justice is best served by appeals being brought promptly. The limit on the period enables the hearing and determination of appeals in a timely way; it facilitates certainty between the parties as to the entitlement of the successful party to the benefit of the judgment sum; enables them to organise their financial affairs; and enables enforcement of judgments to be attended to in a timely way. These are important matters to keep in mind on the present application.

60    Counsel for Mr Marks emphasised his status as an unrepresented litigant, noting that his present solicitors commenced acting for him on 11 February 2020. Counsel referred in this respect to Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 in which, in relation to criminal trials, Mason CJ and McHugh J said at 302:

An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown.

(Citation omitted)

61    Mr Marks also sought to attribute his present predicament to his unrepresented status and to a lack of knowledge of procedural matters. He deposed:

[16]    … I have been largely unrepresented throughout various proceedings due to my inability to fund legal action. As an unrepresented litigant I have found it very confusing and I did not fully appreciate or realise until recently that I was clearly out of time for lodging of (sic) a Notice of Appeal against the Orders made by the Deputy President of the SAET.

…

[18]    Up until very recently, I did not understand how the rule of the counting of time for the bringing of an appeal in this Honourable Court worked. I had this belief which I now know to be erroneous, that the time for bringing an appeal in this Honourable Court from the orders made by the Deputy President of the SAET ran from the date of when the matter to be appealed from was completed in all respects …

[19]    I recently sought advice from a lawyer who informed me that the counting of time for the bringing of the Appeal runs from the date of the judgment or orders sought to be appealed from.

62    I accept that, ordinarily, the fact that a litigant is unrepresented in the pursuit of legal proceedings will be a relevant matter in understanding the circumstances in which the matter came to be out of time and in determining whether the justice of the case makes the extension appropriate. The lack of familiarity of such a litigant with procedural requirements is one reason why that is so. The difficulty which Mr Marks had in providing documents in paper form for filing in this Court may be one manifestation of Mr Marks’ lack of understanding of procedures.

Consideration

63    Mr Marks describes himself as being, in effect, a commercial builder. However, he differs from many unrepresented litigants as it is evident that he has considerable experience in litigation, often as a self-represented litigant. Mr Marks is also seemingly able to obtain legal representation in legal proceedings as and when it suits him. In the proceedings heard by Lieschke DP, Mr Marks had representation at one stage by Angas Lawyers. In the appeal in the SAET, he had representation from at least 6 July 2018 until the Full Bench delivered its judgment on 28 August 2019. In the proceedings commenced by the first respondent in the District Court in 2018, Mr Marks was represented by a different lawyer and in relation to the proceedings in the Federal Circuit Court in 2018 and 2019, Mr Marks had representation by a yet different lawyer. In relation to the proceedings in the District Court in 2020 and 2021, Mr Marks has been represented by his present solicitors.

64    The first respondent’s solicitor also drew attention to other litigation in which Mr Marks has been involved and from which his involvement in yet further litigation can be discerned:

65    The judgments record or indicate that Mr Marks represented a party in each of these proceedings other than Minister v New Wave Aerospace [2020] SASC 37. In these circumstances, I think it reasonable to conclude that Mr Marks had some familiarity with the way in which litigation is conducted and with the procedural requirements concerning the commencement of proceedings. His conduct in relation to the present appeal should be assessed in the light of that experience.

66    I regard Mr Marks’ claim that “until recently” he had not fully appreciated or realised that he was out of time for lodging a notice of appeal to this Court as implausible and am not willing to accept it. Likewise, I regard his asserted belief that the time in which to bring an appeal did not commence to run until the matter at first instance had been completed in all respects to be implausible. As counsel for the first respondent noted, these assertions seem inconsistent with Mr Marks’ assertions that he had attempted to lodge a notice of appeal in the SAET on 28 June 2018 and with the instructions which he must have given to his solicitor in respect of the lodgement of the appeal in the SAET on 13 July 2018. Moreover, the evidence of the first respondent’s solicitor (which I accept) indicates that Lieschke DP told Mr Marks on 16 October 2020 that he was “out of time to appeal” and that, if he wished to appeal to this Court, he would need to file an application for an extension of time immediately.

67    A pertinent consideration is that the first respondent’s proceedings in the SAET have still not been finally resolved: the claim for penalties, the claim for reimbursement of a value of tools (assuming that claim is maintainable) and the issue about a mistake in arithmetical calculation of the first respondent’s entitlement are yet to be resolved.

68    In Shahin Enterprises v Mathew at [101]-[104], the Full Court emphasised the desirability in the interests of the administration of justice for applications for the imposition of civil penalties in circumstances of the present kind to be addressed at the same time as the quantum of the underpayments, or very soon thereafter. The Full Court noted that doing so enables the issues of penalties to be addressed when the issues are fresh in everyone’s mind, including that of the Tribunal member, and enables appeals with respect to all matters arising from the one proceeding to be determined at the same time. It gives the parties certainty as to the outcome of the litigation and facilitates efficiency in the administration of justice. Even if there is an appeal against the liability finding, the issues concerning monetary relief and pecuniary penalties should be determined promptly. Courts have powers to order stays of execution pending the determination of an appeal.

69    In the present case, the fact that more than two years and 10 months after the decision on 22 June 2018, it is still not known whether civil penalties will be imposed and, if so, in what amounts adds to the complexity of the issues on the application for the extension of time. In the event that penalties are imposed, and Mr Marks is dissatisfied with that outcome, there is the prospect of an appeal arising from the same proceedings being brought before the Court. It is possible that that appeal may involve agitation of some of the matters which Mr Marks wishes to agitate on the appeal for which he seeks an extension of time. It is unfortunate that the parties and this Court should, in the context of the present application, have to speculate about these matters, and undesirable that the Court be asked to take into account, in the exercise of the discretion concerning an extension time in which to appeal against orders made as long ago as 22 June 2018, the uncertain prospect that Mr Marks may wish to bring a further appeal.

70    Although the position is not satisfactory, I do consider, contrary to the submissions of the first respondent’s counsel, that the prospect of a further appeal is a matter to be taken into account in the exercise of the discretion. However, the uncertainty as to whether or not there will be a further appeal means that it is not a matter to which substantial weight should be given.

71    The circumstance that a party seeks an extension of time in which to appeal because of its pursuit of an appeal in another court in the honest but mistaken belief that that Court had jurisdiction would ordinarily be a strong factor in favour of the grant of an extension of time, provided of course, that the proposed grounds of appeal can be seen to be reasonably arguable. However, this is a case of an appellant pursuing his appeal in the wrong tribunal despite having a firm indication as to the appropriate court in which he should bring his appeal. That is to say, this is the case of an applicant who is not blameless and who has not attempted to explain his pursuit of the appeal in the wrong tribunal.

72    In summary, Mr Marks seeks an extension of time for a very long period; his explanation for the matter being out of time is far from complete or satisfactory; he has not put before the Court material enabling a preliminary assessment of the arguability of his grounds of appeal; the first respondent will be prejudiced by the grant of an extension of time; and there does not seem to be a persuasive consideration in the interests of justice more generally pointing to the appropriateness of an extension of time.

73    In the circumstances, I am not satisfied that an extension of time is in the interests of justice. Accordingly, Mr Marks’ application is refused.

Associate:

Dated:    20 May 2021

SCHEDULE OF PARTIES