Dickson v Downer EDI Works Pty Ltd

REASONS FOR JUDGMENT 1 Mr Derek Dickson was employed by the respondent ("Downer EDI"). On 18 March 2014 he was suspended on full pay and, on 16 April 2014, his employment was terminated. He then commenced a proceeding in this Court under the Fair Work Act 2009 (Cth) ("the Act") alleging that Downer EDI had taken adverse action against him because he had exercised various workplace rights or had been temporarily absent from work because of illness. The trial took place over four days in September 2014. On 24 October 2014 Ross J dismissed the application and published reasons for his decision: see Dickson v Downer EDI Works Pty Ltd [2014] FCA 1134. 2 On 17 November 2014 Mr Dickson filed an application for an extension of time within which to file a notice of appeal against his Honour's order. He also filed a draft notice of appeal. 3 The application was supported by an affidavit. Although not referred to in it, there was attached to the affidavit a medical certificate dated 17 November 2014 in which a general practitioner certified that Mr Dickson had been suffering from a medical condition since about 26 October 2014. That condition had been so severe that Mr Dickson had hardly left his house and had not been able to concentrate on any sort of paperwork. Mr Dickson (who appeared in person at this morning's hearing) confirmed that it was this medical condition which had inhibited him from filing a timely notice of appeal. 4 The draft notice of appeal contained the following grounds: "1. Judge was Biased towards respondents due to possible past working Relations or other outside Influential Party 2. Applicant deserves a Fair Trial 3. Judge refused to Accept sworn Evidence 4. Judge refused to allow applications submitted for Subpoenas to be granted 5. Judge refused to accept sworn signed Witness Affidavits 6. Judge did not enter any of the Applicants Evidence in his Findings 7. Judge did not publish his findings or Reasons for judgements (sic) 8. Much more" 5 Under the heading "Orders sought" Mr Dickson wrote: "1. The Applicant wants a Fair and Unbiased Judge 2. The Applicants (sic) wants what every fair dinkum Honest Citizen of Australia can see that the Respondent is Guilty of wrong and unlawful Termination of Applicants Employment and should be reinstated ASAP" 6 Downer EDI opposed the granting of Mr Dickson's application. It contended that the application was not in proper form, that the medical certificate should not be received and, in its absence, there was no explanation for the failure to file the notice of appeal within time. There was also, so it was submitted, no legal merit in the proposed appeal. 7 An application for an extension of time within which to file a notice of appeal may be made pursuant to Rule 36.05 of the Federal Court Rules 2011 (Cth) ("the Rules"). The Court has an unfettered discretion to grant or refuse such an application. That discretion must, of course, be exercised judicially. This requires a balancing of potentially conflicting interests and regard to the peculiar circumstances of each case. The starting point in any given case is that the relevant legislation or rules have prescribed a period within which an appeal must be lodged. Such prescription serves the public purpose of bringing disputes to finality. There is, therefore, what has been described as a prima facie rule that applications or appeals brought out of time will not be entertained: cf Lucic v Nolan (1982) 45 ALR 411 at 416. It is, therefore, necessary for an applicant who seeks an extension of time to advance some plausible reasons which explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted: cf Duff v Freijah (1982) 62 FLR 280 at 285. 8 One factor which might carry significant weight in determining where the justice of a case lies is the merits of any proposed appeal: cf Lucic at 417; Parker v The Queen [2002] FCAFC 133 at [6]; Wilson v Alexander (2003) 135 FCR 273 at 280. Where an extension of time is sought in order to lodge a notice of appeal, it is to be borne in mind that "the respondent to the application has a vested right to retain the judgment, the subject of the appeal": see Jackamarra v Krakourer (1998) 195 CLR 516 at 519-20 (Brennan CJ and McHugh J). In assessing the merits of a potential appeal the Court is not required to examine a case in great detail. A "full rehearsal" of the argument on appeal is not required. Any assessment of "the merits" must necessarily be undertaken "in a fairly rough and ready way": see Jackamarra at 522. See also: Jess v Scott (1986) 12 FCR 187 at 191-2 and the authorities therein referred to. 9 I have carefully examined the grounds on which Mr Dickson seeks to rely in his draft notice of appeal and have given him the opportunity, this morning, to elaborate on those grounds. Having done so I am unable to identify any coherent basis upon which Mr Dickson might prosecute an appeal. 10 Two of the grounds (5 and 6) are contradictory and wrong in fact. Ross J did publish his reasons for judgment and they contain a number of references to evidence given by Mr Dickson at trial: see, for example, at [33], [34], [38], [43], [60]. 11 Proposed ground 1 raises an issue of bias on the part of the trial judge. No distinction was made in argument between actual and ostensible bias. In oral submissions Mr Dickson founded this allegation on a series of connected propositions. They were that the trial judge was also the President of Fair Work Australia, that counsel for the respondent at trial formerly worked for the former President of Fair Work Australia and may, therefore, be assumed to have been in the same building at some stage as the trial judge. The possibility provides no proper foundation for an allegation of bias either actual or ostensible on the part of the trial judge. 12 As to other grounds they all related directly or indirectly to Mr Dickson's assertion that he had rendered long and faithful service to Downer EDI. He maintained that he had done nothing wrong and that he needed to protect his reputation and integrity. He raised a series of arguments which might have been appropriate in an application for a remedy for unfair dismissal. He sought to argue the merits of the decisions to suspend and terminate him and the fairness of the processes adopted by Downer EDI in dealing with his alleged misconduct. It was material going to the merits and process which the trial judge rejected on the ground of relevance. 13 It is to be borne in mind that the issues which fell for determination at trial were very narrowly confined. They turned on the real reason for Downer EDI's decision to suspend and then terminate the employment of Mr Dickson. The trial judge heard evidence from the two decision makers and accepted that neither of them had acted for any proscribed reason, including the reasons which Mr Dickson had attributed to them. In these circumstances the broader merits of Mr Dickson's position had little, if any, bearing on the issues to be resolved at trial. 14 I make due allowance for the fact that, as an unrepresented litigant, Mr Dickson labours under a considerable disability. Had he demonstrated an arguable case on appeal I would not have refused him an extension of time simply because he was a day out of time for filing his notice of appeal. The medical evidence, although not placed before the Court in strict legal form, nonetheless satisfied me that he was unable to give attention to his legal and other affairs for some weeks after the trial judge's decision was handed down. This provided a reason for the short delay in filing the appeal. No particular prejudice to Downer EDI was alleged. 15 The application must be refused. 16 Downer EDI sought its costs. It submitted that the application had no reasonable prospects of success and that this brought the case within the exception provided for in s 570(2) of the Act. 17 The refusal of Mr Dickson's application involved the exercise of a broad discretion. There were considerations which tended both for and against a favourable exercise of that discretion. In the circumstances I do not consider that the application was bound to fail. Accordingly s 570(1) of the Act operates to preclude an award of costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.