All Districts Coating Pty Ltd v Barhoum [2009] FCA 46 (27 January 2009)

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All Districts Coating Pty Ltd v Barhoum [2009] FCA 46 (27 January 2009)

Last Updated: 5 February 2009

FEDERAL COURT OF AUSTRALIA

All Districts Coating Pty Ltd v Barhoum [2009] FCA 46

PRACTICE AND PROCEDURE – second application for extension of time in which to file and serve notice of appeal – whether special reasons exist justifying a grant of leave

Held: application dismissed

Federal Court Rules
Workplace Relations Act 1996 (Cth)

All Districts Coating Pty Ltd v Barhoum (2008) FCA 1757
Clairs Keeley (a firm) v Treacy [2004] WASCA 277; (2004) 29 WAR 479
Kuruwitage v Minister for Immigration and Citizenship [2007] FCA 795
National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315
Nominal Defendant v Manning (2000) 50 NSWLR 139
Wentworth v Rogers (unreported, Sup Ct, NSW, Sperling J, SC 19228 of 1982, 28 April 1995)

ALL DISTRICTS COATING PTY LTD, ALL DISTRICTS COATING (AUST) PTY LTD and CARLOS HABIBEH v EAD BARHOUM
NSD 1954 of 2008

JAGOT J
27 JANUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1954 of 2008

BETWEEN:	ALL DISTRICTS COATING PTY LTD First Applicant ALL DISTRICTS COATING (AUST) PTY LTD Second Applicant CARLOS HABIBEH Third Applicant
AND:	EAD BARHOUM Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	27 JANUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time in which to file and serve a notice of appeal is dismissed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1954 of 2008

BETWEEN:	ALL DISTRICTS COATING PTY LTD First Applicant ALL DISTRICTS COATING (AUST) PTY LTD Second Applicant CARLOS HABIBEH Third Applicant
AND:	EAD BARHOUM Respondent

JUDGE:	JAGOT J
DATE:	27 JANUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to file and serve a notice of appeal from judgments of the Federal Magistrates Court given on 22 February and 11 July 2008. The extension of time is required because a notice of appeal was not filed and served within the time prescribed by Order 52 r 15 of the Federal Court Rules which provides that a notice of appeal shall be filed and served within 21 days after the relevant date, subject to Order 52 r 15(2) that the Court or a judge for special reasons may, at any time, give leave to file and serve a notice of appeal.
2. In the written submissions on behalf of the respondent to the notice of motion, reference is made to the decision of Middleton J in Kuruwitage v Minister for Immigration and Citizenship [2007] FCA 795 at  [9]. That paragraph sets out the relevant principles in relation to special reasons as referred to in Order 52 r 15(2) and I adopt the statement set out therein, namely that:

In determining whether special reasons exist, something out of the ordinary is required: see Jess v Scott (1986) 12 FCR 187 at 195. The guiding principles are set out at Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 to 349, and include a requirement that there be some acceptable explanation for the delay, and require the merits of the substantial application to be taken into account. Furthermore, even where there are special reasons why the appeal should be permitted to proceed, the Court has the discretion to grant or refuse the extension time sought. The factors to be taken into account were set out in Australian Prudential Regulation Authority v Holloway (2001) 48 ATR 59 and relevantly include:

1. the importance of the question sought to be raised by the proposed appeal;
2. the bona fides of the proposed appeal;
3. the prima facie strength of the proposed ground of appeal; and
4. the explanation for the delay.
   
3. This application for an extension of time was described by both parties as the second application. This description arises from the fact that there was an earlier decision of Moore J, being All Districts Coating Pty Ltd v Barhoum (2008) FCA 1757 (24 November 2008), in which his Honour dismissed an application for an extension of time. The parties agreed the relevant principles in relation to such a second application. Those principles are accurately summarised at [28] to [33] of the respondent’s written submissions, referring to the decisions in Walton v Gardner (1992) 177 CLR 378 at 393, Clairs Keeley (a firm ) v Treacy [2004] WASCA 277; (2004) 29 WAR 479 at [7] to [14], Wentworth v Rogers (unreported, Sup Ct, NSW, Sperling J, SC 19228 of 1982, 28 April 1995), Nominal Defendant v Manning (2000) 50 NSWLR 139 at 156 and National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315.
4. In essence, it is accepted by both parties that the making of this second application is not an abuse of process for that reason alone and this is so irrespective of the fact that there has been no change of circumstances (but for a further affidavit to which I will make reference shortly). Accordingly, I adopt the principle referred to by both parties that it is not the case that I cannot entertain this second application. As stated in Nominal Defendant v Manning at 156:

The... proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne J referred in D A Christie Pty Ltd v Baker (at 602 to 603) – the risk of conflicting decisions, the unnecessary effects on the respondents, judge shopping and the diminution of certainty in the conduct by respondents of their affairs – and others – damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily – are evils which each court, in its individual discretion, will rightly strain to avoid.

5. In this case, the applicants point to a number of factors which they submit show that the greatest injustice of all would be to allow a decision to stand in circumstances where something is manifestly wrong with that decision. In this regard, the applicants point to the following matters (which I address by reference to the reasons of Moore J). Moore J, in his decision, set out the background circumstances to the present application which I adopt. In short, the Federal Magistrates Court delivered a decision and made orders on 22 February 2008. The applicants filed an appeal against that decision without seeking leave to appeal. The respondent filed a motion to strike out that appeal on the ground that the appeal was incompetent because the decision of the Federal Magistrates Court was interlocutory, there still being outstanding issues in the proceedings before the Federal Magistrates Court. Moore J heard that motion on 3 June 2008 and reserved his decision. In the meantime, the Federal Magistrates Court made final orders, including orders for the payment of compensation to the respondent on 11 July 2008. The applicants however, did not file an appeal against these final orders but awaited the outcome of the strikeout application. Moore J delivered his decision in relation to the strikeout application on 14 October 2008 and struck out the appeal as incompetent. The applicants then filed the first application for an extension of time on 20 October 2008. Moore J heard that application on 10 November and dismissed it on 24 November 2008. This further application for an extension of time was filed on 17 December 2008 supported by two affidavits of the solicitor for the applicants, Mr Richard Mitry.
6. Apart from setting out the background to the proceedings, Mr Mitry explains that he did not file an appeal against the orders of the Federal Magistrates Court of 22 July 2008 because he was uncertain of what to do in circumstances where there was an appeal already on foot but subject to challenge. Although he recognised that a possibility would have been to file a further appeal immediately, in circumstances where that may be unnecessary because the first appeal may not be struck out, it appeared to be a waste of money. Mr Mitry identifies in his affidavit the other steps which he took in relation to the appeal. The second affidavit of Mr Mitry annexes certain documents that were before the Federal Magistrates Court but which were not before Moore J when he determined, on 24 November 2008, to refuse the application for the extension of time.
7. According to the applicants, Mr Mitry’s explanation of the delay in filing the notice of appeal after the final orders of the Federal Magistrates Court of 22 July 2008, in short, were not as unsatisfactory as Moore J appears to have concluded. At [16] of his reasons for decision, Moore J described the avoidance of the costs of filing a further notice of appeal as:

a comparatively unsatisfactory explanation for failing to adopt what would have been the obvious and cautious approach, namely filing in time a notice of appeal against the orders of 11 July 2008 in which the earlier orders could also have been challenged.

8. Counsel for the applicants points out that filing fees are not insignificant and it is not as if the applicants simply sat on their hands. With respect to Moore J’s observation at [18] that no attempt was made to demonstrate error on the part of the Federal Magistrate by reference to his reasons about the termination of the respondent’s employment, the applicants submit that it was not contested that the second appellant had ceased trading in April 2006. The Magistrate had found that this decision predated the injury. It therefore followed that if the decision to cease trading was unrelated to injury to the respondent, the respondent cannot have been terminated for the prohibited reason identified in s 659(2)(a) of the Workplace Relations Act 1996 (Cth).
9. The applicants also refer to Moore J’s reasons at [18] to [22], in which his Honour described the fact that the Federal Magistrates Court made orders against all three of the applicants in circumstances where s 665 specifically refers to the making of orders against an employer. At [21] of his reasons, Moore J said:

I presently do not see why whichever of the applicants is the employer should gain the benefit of this uncertainty, the resolution of which could ultimately operate to the benefit of the other two applicants. Putting it slightly differently, why should the applicant that is the employer be allowed to appeal, by the grant of an extension of time, when his or its case on this point is doomed to fail (because a finding will be made against him or it in the appeal that he or it is the employer). In the absence of the applicants pointing to findings or evidence that tended to demonstrate which of the applicants was the employer, I should proceed on the basis that it could be any of the three of them.

10. According to the applicants’ submission, this paragraph involves a reversal of the onus of proof (which was on the respondent), but in any event the further affidavit that Mr Mitry swore on 23 January 2009 annexes documents which are said, unequivocally, to show that the relevant employer was the second applicant alone. Mr Mitry’s affidavit says that these documents were before the Federal Magistrate but not before Moore J because Mr Mitry did not realise that they might be relevant to the consideration of the Court as to whether an extension of time ought to be granted. For this reason, the applicants say that at least two of the applicants have an unanswerable claim, namely, that they were not the relevant employer of the respondent. One applicant has an arguable claim, namely, that there was no termination of employment for a prohibited reason. In circumstances where none of the applicants sat on their hands because they did in fact appeal, indeed appealed too early against the decision of the Federal Magistrates Court, it would be a harsh exercise of discretion to now deny them the opportunity to appeal. That is, on the one hand the applicants’ original appeal was dismissed as too early but now they are being refused an extension of time on the ground that they are too late.
11. The difficulty with these submissions, however, is exposed by the competing submissions on behalf of the respondent. As the respondent rightly says, the prohibited reason in s 659(2) need not be an exclusive reason. The section specifically refers to termination for any one or more of the prohibited reasons or for reasons including any one or more of the prohibited reasons. Nothing has been said today which suggests or points to any particular error in the approach of the Federal Magistrate to that issue.
12. Moore J, at [16], indicated that he accepted that there was some uncertainty attending the status of the original notice of appeal and that, if the facts went no further, he might have considered extending time even though he found the explanation of avoiding the costs of filing a new notice of appeal comparatively unsatisfactory. I share that view that the reason is comparatively unsatisfactory and nothing additional has been put to me today suggesting any new reason. His Honour then pointed to what he described as other factors pointing to a refusal of the exercise of discretion. The first of these was that he could not see, or he had not been taken to, any demonstrable error on the part of the Federal Magistrate with respect to the application of s 659(2)(a) of the Workplace Relations Act. For the reasons I have already given, that seems to me to remain the same position as at today’s date. His Honour’s second reason related to the submission that the Federal Magistrate had failed to identify the relevant employer and therefore had necessarily made orders against at least two parties where there was no power to make orders against those parties not being the relevant employer. Again, I agree with what Moore J said insofar as it seems to have been conceded that it is logically correct to say that two of the applicants could not have been the relevant employer. However, the reasons of the Federal Magistrate, consistent with the respondent’s submission, show that all of the relevant documents were before the Federal Magistrate, including those annexed to Mr Mitry’s affidavit as well as other documents. On the basis of the whole of that evidence, the Federal Magistrate reached a view that the third applicant used the first and second applicants interchangeably in the conduct of the business.
13. Additionally, as the respondent submitted, the uncertainty surrounding the identity of the employer was a matter which could have been clarified by the applicants by their evidence if they had so chosen to do. It seems to me in these circumstances that the discretionary factor referred to in [21] of Moore J’s decision does not involve any inappropriate reversal of the onus of proof, but is simply a discretionary reason that he rightly took into account to say that there should not be an exercise of discretion in the applicants’ favour. Moore J also took into account, as set out in [23], the lack of a stay and a failure by the applicants to satisfy orders of the Federal Magistrates Court. I do not consider that these matters are entitled to material weight.
14. It seems to me that when I weigh up the circumstances to which I have referred with the considerations referred to in Nominal Defendant v Manning, particularly the risk of conflicting decisions, the unnecessary vexing of the respondent, diminution of certainty in the conduct by the respondent of its affairs and damaging public confidence in the integrity of judicial decisions, they lead to the conclusion that the proper administration of justice in this case requires a refusal of an exercise of discretion in the applicants’ favour. Accordingly, I make orders that the applicants’ application for an extension of time for the filing of an appeal, filed on 17 December 2008 is dismissed.
15. The respondent seeks an order for costs on the basis of the exception in s 824(1) of the Workplace Relations Act. That section effectively provides that there must not be a costs order in these proceedings unless, relevantly, the party against whom the order is sought instituted the proceedings vexatiously or without reasonable cause. The respondent accepts that the application was not made vexatiously but says it was made without reasonable cause because there was no fresh evidence or demonstrable error in Moore J’s reasoning process and that is sufficient to say that the proceedings were brought without reasonable cause. The matter is not straightforward. There was an additional affidavit of Mr Mitry. I accept that the affidavit did not contain fresh evidence but it did contain material that, for the reason given by Mr Mitry, was not before Moore J. It seems to me to be too much to say that this application was brought without reasonable cause. Accordingly, I do not propose to make any order for costs and I will return the Workplace Relations Act.
    

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

Associate:

Dated: 27 January 2009

Counsel for the Appellants:	Mr A Rogers
Solicitors for the Appellants:	Mr R Mitry of Morgan Ardino
Counsel for the Respondent:	Mr D Shoebridge
Solicitor for the Respondent:	Ms L Charlson of CFMEU
`
Date of Hearing:	27 January 2009
Date of Judgment:	27 January 2009