Cheng v Smith [2007] FCA 619 (27 April 2007)

Last Updated: 14 May 2007

FEDERAL COURT OF AUSTRALIA

Cheng v Smith [2007] FCA 619

MARK CHENG v STEVE SMITH
NSD 325 OF 2007

ALLSOP J
27 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 325 OF 2007

BETWEEN:	MARK CHENG Applicant
AND:	STEVE SMITH Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	27 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The applicant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 325 OF 2007

BETWEEN:	MARK CHENG Applicant
AND:	STEVE SMITH Respondent

JUDGE:	ALLSOP J
DATE:	27 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from orders made by the Federal Magistrates Court on 28 February 2007. In those orders the Federal Magistrates Court dismissed the application of the applicant pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001. That rule is in the following terms:

The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that: (a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; ...

2 The dismissal of the application by the Federal Magistrates Court on that basis was an interlocutory order. The circumstances of the dismissal are set out in the reasons for judgment of the Federal Magistrate of February 2007. The reasons recited the findings of the Human Rights and Equal Opportunities Commission and the matters before the Federal Magistrates Court.

3 The matters to which the Federal Magistrate directed himself were as follows. That the matter was listed on 4 December 2006 when orders were made by the Court for the conduct of the case and the matter was set down for hearing on 31 January 2007. The matter was called on on that day and the Court asked the applicant if there was anything the applicant wished to add to the material before the Court. The Federal Magistrate records that the applicant stated that he was unable to add anything to the material and that he wanted to file an amended application joining another respondent.

4 The Federal Magistrate also records that the applicant sought an order that a Mr Bill Francis reply to a letter sent to him by the applicant of 15 November 2006 which was annexed to a copy of an affidavit of the applicant. The Court declined to make that order. The respondent made an application that the Court dismiss the application on the basis that there was no substance in the material before the Court. The Federal Magistrate reserved and concluded on the material that had been placed before the Court that there was no apparent reasonable cause of action disclosed in relation to the proceeding or claim for relief.

5 The orders being interlocutory any appeal requires leave. On 6 March 2007 an application for leave to appeal was filed in this Court together with an affidavit of the applicant. The affidavit stated that Mr Smith was dishonest in various respects in October 2005 and created new excuses for not giving the applicant bar and waitering work when working as a kitchen hand. The affidavit asserted that Mr Smith targeted him in respect of various matters including amongst other things "talking to staff, delaying work, etcetera". The affidavit also asserted that Mr Bill Francis had ignored the applicant’s letter which had a lot of information about the case.

6 The draft notice of appeal which was attached to that affidavit contained the following as grounds of appeal:

(1) Wrote to HREOC about Bill not replying to Liz’s letter.
(2) This would give detailed proof for the case.
(3) Wanted to file an amended affidavit and issue subpoenas but waited [for] HREOC support as they said they would reply. This would be done before 28 February 2007 if the HREOC replied. Legal Aid have sometimes given wrong information.

7 That is the totality of the grounds of appeal. As can be seen none of the matters in the affidavit or draft notice of appeal identify any error on the part of the Federal Magistrate.

8 The matter came before me on 20 March 2007. There was no appearance for the applicant. On that day I ordered the respondent to file and serve on or before 27 March 2007 brief written submissions as to why the application should be refused and I ordered that this be served on the applicant. I stood the matter over to 10 April 2007 at 10.15 for hearing. On that day the applicant appeared. I explained to the applicant on 10 April 2007 that it was necessary for him to show the Court why there were grounds to consider that the Federal Magistrates Court through the Federal Magistrate had committed an error in the way that it approached the matter. I gave the applicant two further weeks to file and serve any amended application for leave to appeal and any further affidavit evidence upon which he would seek to rely for the application for leave to appeal. I set the matter down for hearing today at 2.15 pm.

9 On 23 April 2007, the applicant filed an amended application for leave to appeal. It sought leave to appeal from the judgment of "John Allsop" at "Federal Court". I am prepared to work on the basis that there was some confusion in the applicant and that this was some amended application for leave to appeal from the Federal Magistrates Court.

10 Also filed on 23 April 2007 was an affidavit. The content of the affidavit sworn to by the applicant is as follows:

Steve Smith was dishonest on my bar and waitering applications in October 2005 and denied my experience for the role, while working as a kitchen hand. He hired staff with no or less experience than me in both roles.

[This is substantially the same allegation as was contained in the affidavit of 6 March 2007 to which I earlier referred.]

Steve always targeted me for body odour, talking to staff and sometimes finishing work overtime, and sometimes reminding bar and wait staff of Australian background for the anomalies.

In the HREOC letter response from Steve, he stated he would train Lucy, a former waitress with little experience with better ease. Steve was impatient to Lucy, when she could only carry two plates instead of three. The body odour of mine was unpleasant since my deodorant was weak. I told Steve I showered, and bought another shirt to change for work and always applied deodorant. I now use a stronger deodorant.

Reports of my experience can be shown in court for the two roles.

11 Attached to this affidavit was an application in form 5 of this Court seeking compensation under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) claiming interlocutory relief for transfer to a civil court under the Cross-Vesting Act "if the case falls under civil" and also claiming interlocutory relief "begin the HREOC application again to name staff involved, if subpoena information is insufficient and false".

12 The third aspect of interlocutory relief sought was as follows:

Bill must privately explain to each subpoena about their task and not to discuss it to anyone – as the case is private. Steve wouldn’t be trusted as I have claimed his dishonesty.

13 As can be seen from the amended application and the affidavit there are no identifiable grounds set out which impeach the approach of the Federal Magistrate. There has been no attempt made before me to identify the grounds of error of the Federal Magistrate and for that reason the application for leave to appeal should be dismissed. If the applicant feels that he has a case in relation to the underlying HREOC claim it is incumbent upon him to bring forward to a court a coherent articulated claim together with material which would support it.

14 The orders in the Federal Magistrates Court are interlocutory. That means they are not final. They were made because the Federal Magistrate took the view that on the material placed before him there was no reasonable cause of action. There has been no attempt made by the applicant to reveal error in that approach by the Federal Magistrate. If another case is brought in which a cause of action is properly identified the relevant court would need to deal with those issues together with any question of an extension of time if the application was out of time. On the material before me there is no basis to think that there has been any coherent argument put before this Court to conclude that the Federal Magistrate committed error in the way he approached the matter.

15 For those reasons the application for leave to appeal is dismissed and I order that the applicant pay the respondent’s costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 4 May 2007

The Applicant appeared in person.
Counsel for the Respondent:	Mr P English
Solicitor for the Respondent:	Surry Partner Lawyers
Date of Hearing:	27 April 2007
Date of Judgment:	27 April 2007