Federal Court of Australia

Wijaya v Matthew Brothers Engineering Pty Ltd [2026] FCA 1165

ORDERS

THE COURT ORDERS THAT:

1.    The objection to competency filed 2 June 2026 be upheld.

2.    The proceedings be dismissed.

3.    The Applicant pay the Respondent’s costs of the proceedings (but not of the appearance on 3 August 2026) to be fixed on a lump sum basis in accordance with GPN-Costs by a Registrar in the absence of agreement.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

1    The Applicant who is a litigant in person has filed an application for an extension of time within which to file a notice of appeal. That application was taken to be filed on 31 March 2026, given the time of lodgement and by application of r 2.25(3) of the Federal Court Rules 2011 (Cth) (the Rules). The application for an extension of time within which to appeal is sought in relation to a decision of a judge of this Court in Wijaya v Matthews Brothers Engineering Pty Ltd [2026] FCA 138 delivered on 20 February 2026 (Judgment).

2    The Judgment was a review of a decision of a Registrar of this Court given on 11 August 2025. The Registrar’s decision granted summary judgment to the Respondent, Matthews Brothers Engineering Pty Ltd, against Mr Wijaya’s proceedings wherein he sought various relief pursuant to the General Protections provisions of the Fair Work Act 2009 (Cth) (FWA). The Respondent employer sought summary judgment on the basis that there was no reasonable prospect of success, when considering Mr Wijaya’s amended statement of claim and the arguments he raised.

3    The Registrar relevantly considered Mr Wijaya’s statement of claim and his submissions and granted summary judgment.

4    On the review of the Registrar’s decision, the primary judge dismissed the review (and confirmed the Registrar’s summary dismissal order), finding that (at [10]):

…the pleaded case is hopeless and there is no prospect that any reasonable cause of action may be resurrected and pleaded from facts that are not in issue.

5    That has caused Mr Wijaya to bring the current proceedings. The Respondent has filed a notice of objection to competency of the appeal as the decision was one made on a summary judgment application and thereby interlocutory. A notice of objection to competency raises the question of the Court’s jurisdiction. The Court must consider as its first duty or threshold consideration in approaching a matter before it, its jurisdiction: see Plaintiff S164/2018 v Minister for Home Affairs (2018) 92 ALJR 1039; [2018] HCA 51 at [8] (Edelman J).

6    The question of leave to appeal is a jurisdictional question pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA). Since the Respondent filed the notice of objection to competency, Mr Wijaya has provided a draft document headed “Application for Leave to Appeal”. That should be an application for an extension of time within which to seek leave to appeal. However, the question of competency, being an aspect of the Court’s duty to consider jurisdiction, must be considered in all of the circumstances: see CWX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 673 at [5] (Gleeson J, then of this Court).

7    This means that, on considering the requirements for an extension of time and leave to appeal, if there was merit to Mr Wijaya’s arguments and the other relevant factors for the exercise of the Court’s discretion were satisfied, then it may be appropriate to grant Mr Wijaya leave to file the necessary documents and then to consider the application for leave to appeal.

8    When considering an extension of time, the Full Court in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] (Yates, Wheelahan and O’Bryan JJ) set out the relevant principles from the often-cited Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186 at 348–9 (Wilcox J), as follows

33    Under rule 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court’s discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]:

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

(b)    There must be some acceptable explanation for the delay.

(c)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

(d)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

(e)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].

(f)    The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [12] (N1202/01A). Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13].

9    Relevantly, it is sufficient to consider three aspects from BQQ15. First, whether there is an acceptable explanation for the delay. Second, the merits of the substantive application, and third what is necessary to do justice between the parties.

10    First, in terms of the explanation for the delay, Mr Wijaya has taken the Court to correspondence with the registry to explain his delay. On 4 March 2026, he first sought judicial review of the Judgment. Then on 18 March 2026 he sought to lodge an appeal from the Judgment. On 25 March 2026, the registry responded advising relevantly that a form 117, being an application for leave to appeal was required together with a form 67, being an application for an extension of time. On 9 April 2026 Mr Wijaya was advised in correspondence from the registry that:

We will proceed without the Form 117.

11    Mr Wijaya makes the submission that he has explained the delay and the proceedings are regularly constituted because of the correspondence from the registry, effectively granting him permission to proceed without the application for leave to appeal. Insofar as this correspondence is relied upon as some explanation for the delay by Mr Wijaya in filing the application for an extension of time on 31 March 2026 in relation to the Judgment, that does go some way to explaining why the time was taken. However, it does not explain why Mr Wijaya did not file the application for leave to appeal, when originally advised to do so.

12    Mr Wijaya has also stated in an affidavit that he works full-time hours and it has been quite challenging for him to manage this case by himself. This may be another part of his explanation. That might be so, but that of itself would not necessarily amount to a sufficient explanation for why it was that the Applicant was unable to file his required documents in time.

13    If there was any merit in the proceedings and if the proceedings were constituted properly by way of seeking leave to appeal, an extension of time may be appropriate.

14    Second, is to consider whether an extension of time should be granted because the merits of the substantive application support the extension. This proceeding should have been commenced by an application for leave to appeal. What must be established is that the Judgment from which leave is sought to appeal is attended with sufficient doubt to warrant it being reconsidered by a Full Court and that substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at 398 (Sheppard, Burchett and Heerey JJ).

15    The first aspect then in relation to the question of leave, is whether or not the primary judge’s decision is attended with sufficient doubt, keeping steadfastly in mind that this is a notice of objection to competency and a consideration of the merits of the Applicant’s proceedings should be evaluated at a reasonably impressionistic level; that is, whether or not there are sufficiently arguable or reasonable prospects of success, in relation to that grant of leave: see Olson v Keefe [2019] FCA 339 at [9] (Lee J).

16    What was critical from the primary judge’s decision was his Honour’s observations, at [3]:

Notably [the applicant’s] pleading does not specify the basis for his asserted workplace rights, there is no causal connexion identified between the termination decision having been taken because he had, had exercised or proposed to exercise a workplace right (or to prevent its exercise).

17    Further, the primary judge also identified the following at [7]:

The fundamental obligation of the applicant in the articulation of his s 340 FW Act claim is to first identify what is the workplace right by reference to s 341 and then to allege that his employer took the termination adverse action because of the workplace right or to prevent its exercise.

18    Finally, the last critical aspect to the primary judge’s reasoning is at [8], where it is said:

…When I asked the applicant questions earlier today to identify for me just what it is that is contended to be his workplace right, he said that it is because he had a contract of employment as a permanent employee. That does not identify a workplace right within the meaning of the FW Act.

19    Mr Wijaya repeatedly submitted today to the Court that his workplace right was being employed on a full-time basis; that is, that he had a contract of employment. As the primary judge, with respect, correctly observed, that is not a workplace right within the meaning of s 341 of the FWA.

20    Mr Wijaya made similar submissions to the Court today (as he did to the primary judge and the Registrar) about the meeting which was undertaken with the Respondent employer when he was informed that his employment was terminated. That is, he was told his personality was not a good fit for the job. The Respondent employer has not denied that explanation but notes that Mr Wijaya was still within a probationary period. In any event, the workplace right was not properly articulated for the purposes of the FWA.

21    Section 341 of the FWA defines a workplace right as follows:

341    Meaning of workplace right

Meaning of workplace right

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

22    It is clear from the terms of that section, that it is not sufficient to simply have a position of employment on a full-time basis. Furthermore, for there to be adverse action within the terms of s 340 of the FWA, there must be a causal connection between the termination and the exercise of that claimed workplace right. That has also not been identified in any of the materials submitted by the Applicant to advance his case.

23    The Judgment is not attended with any doubt. Even at an impressionistic level, Mr Wijaya would be unable to satisfy the first limb of the requirements for leave to appeal. Although Mr Wijaya may claim he will suffer substantial injustice if leave is not granted, the requirements are cumulative and there is no doubt as to the correctness of the Judgment such that Mr Wijaya would be able to meet the requirements for a grant of leave: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36; [2010] FCAFC 139 at [4]-[5] and [9] (Ryan, Stone and Jagot JJ)

24    Third, is to consider the Court doing justice between the parties. Although there can be occasions where the grant of an extension of time to allow further documents or the like to be submitted can be appropriate, this is not one of those cases. When this matter was first before me on 18 June 2026, both parties were given an opportunity to file and serve written submissions in relation to the notice of objection to competency. On the matter first being listed for hearing on 3 August 2026, the Respondent sought an adjournment to file additional material. Further directions were made for both the Respondent to file any further affidavits together with an amended outline of submissions, and for Mr Wijaya to serve any affidavits he seeks to rely on together with an outline of submissions in relation to the objection to competency.

25    What those directions demonstrate is that Mr Wijaya has been provided with ample opportunity to put forward the material he seeks to rely on, in relation to the Respondent’s objection to competency, and he quite rightly drew the Court’s attention to a number of matters for the purposes of today’s hearing. I have taken all of those matters into account. However, as both the Registrar and the primary judge considered and decided, I agree there are no reasonable prospects of this claim being successful.

26    In these circumstances, to do justice between the parties is to bring these proceedings to an end now rather than have the parties expend further time, effort and costs in relation to their prosecution. As such, I will uphold the objection to competency and dismiss Mr Wijaya’s application for an extension of time.

27    The Respondent also seeks an order for costs.

28    The Respondent has quite properly referred to s 570 of the FWA rather than the Court’s power under s 43 of the FCA. Section 570(1) generally provides that it is a no costs jurisdiction in relation to proceedings arising under the FWA. However, there is an exception created under s 570(2) which relevantly provides:

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

…

29    In essence, what is required is that the institution of the proceedings was without reasonable cause or that the Court is satisfied that the party’s unreasonable act or unreasonable omission caused the other party to incur the costs.

30    The Respondent submits that these proceedings were instituted without reasonable cause. That is on the basis that the primary judge expressed findings that the pleaded case was “hopeless” and there is no reasonable prospect of any reasonable cause of action which might be resurrected and pleaded from facts that are not in issue. This is all the more so when the Applicant did not seek to raise any different arguments than were raised before the primary judge. Mr Wijaya has argued that he holds a healthcare card; in effect, that is a submission that due to his financial position, costs should not be awarded against him.

31    Considerations of a party’s financial position are not relevant in relation to whether or not costs should be awarded: see Michos v Eastbrooke Medical Centre Pty Ltd (No 2) [2019] VSC 437 at [37] (Richards J), citing Board of Examiners v XY (2006) 25 VAR 193; [2006] VSCA 190 at [31]–[36] (Chernov JA, Neave JA agreeing), [40]–[43] (Nettle JA).

32    As is made clear under s 570(2) of the FWA, it is the act or omission and whether or not it can be characterised as being unreasonable or without reasonable cause which may give rise to an order for costs. For example, a failure to comply with court directions can constitute an unreasonable act or omission: see Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392; [2007] FCA 879 at [37] (Tracey J).

33    The standard of unreasonableness which should be adopted in these circumstances is higher than mere imprudence or acting unguided by good sense or sound judgment: see Enkel v We R Finance Pty Ltd (No 2) [2021] FCA 529 at [14] (Jackson J). The Respondent also submitted that it did not seek the costs of the appearance on 3 August; that is a proper position for the Respondent to take. The adjournment was necessary for it to file additional material. However, it also then provided Mr Wijaya with a further opportunity to provide evidence and arguments. This was an opportunity that Mr Wijaya did not avail himself of.

34    In these circumstances, the following supports a finding that the proceeding was commenced without reasonable cause. The original application for an extension of time within which to either appeal or seek leave to appeal was already out of time, hence making the application for an extension of time necessary and incorrect documents were filed even when the Applicant was told what documents should be filed. However, principally and more importantly, Mr Wijaya continued to agitate the same arguments and the same matters as were advanced before the Registrar and as were advanced before the primary judge. Those arguments were wholly unsuccessful on both occasions.

35    The evidence and arguments were unsuccessful in circumstances where summary judgment was first granted, and secondly, on review of that summary judgment, it was also confirmed. Although the “General Steel” test is no longer required in relation to granting summary judgment, it is still a power which is exercised with necessary caution. That should have also informed Mr Wijaya in relation to whether it was reasonable to commence these proceedings.

36    Finally, in relation to costs and whether the proceeding was without reasonable cause, it must be noted that Mr Wijaya seeks in his draft notice of appeal for the primary judge to make a formal written apology to the Applicant for failing to exercise the “Fair Work Law” properly by failing to recognise the Applicant’s workplace right under the FWA. Of course, such relief or orders would not be made; it is wholly inappropriate.

37    For all of those reasons, I am satisfied that the Applicant has, without reasonable cause, and has by way of an unreasonable act, commenced these proceedings, which caused the Respondent to incur the costs of these proceedings. As such, I will grant the Respondent its costs of the proceedings (but not of the appearance on 3 August 2026) to be assessed on a lump sum basis by a Registrar in the absence of agreement.

Associate:    

Dated:    20 August 2026